Bhagwanti Devi And Others v. Ish Kumar And Others

H.L Anand, J.:— This Judgment would dispose of F.A.O 81/71 and F.A.O 103/71, both of which assail the Award of Mr. Shiv Das Tyagi, Motor Accident Claims Tribunal, Delhi, made on January 14, 1971 in suit No. 104 of 1965, being an application under section 110-A of the Motor Vehicles Act, 1939, hereinafter called “the Act”, filed by Mrs. Bhagwanti Devi and the other heirs of Mr. P.C Sharma, who died as a result of an accident with the scooter which was being driven by Ish Kumar, respondent No. 1, owned by respondent No. 2 and insured with respondent No. 3. F.A.O 81/71 is an appeal under section 110-D of the Act by the driver, the owner and the insurer of the vehicle for setting aside the Award, while F.A.O, 103/71 is a similar appeal by the widow and he, other legal representatives of the deceased for the enhancement of the compensation awarded by the Tribunal.

2. In the application the legal representatives made a claim for Rs. 40,000/- from the respondents as compensation on account of the death of the deceased on the allegations that the deceased, who was working as an Assistant in the Directorate General of Health Services, Ministry of Health, Government of India and was 36 years of age, was hit on March 3, 1965 at 9-35 A.M by scooter No. DIM 7491 driven rashly and negligently by Ish Kumar, respondent No. 1 belonging to respondent No. 2 and insured with respondent No. 3. It was further alleged that the accident occurred when the deceased having got down from a DTU bus near Patiala House Annexe, Tilak Marg, New Delhi was crossing the road to go over to the other side where his office was situated. It is further alleged that the accident was the result of rash and negligent driving of the said scooter by Ish Kumar. The deceased received brain injury as a result of the accident and died on March 5, 1965, leaving a widow and 4 unmarried daughters. Originally, Ish Kumar was shown to be the owner, of the scooter but eventually respondent No. 2 was impleaded as a respondent on the discovery that the scooter, though being driven by Ish Kumar, was owned by respondent No. 2. The claim of the petitioners was contested by the driver, the owner and the insurer of the scooter, inter alia, on the ground that the scooter was not being driven rashly or negligently and that the accident was caused because of the sudden appearance of the deceased from between the buses which were parked on the left of the road and when the deceased, unmindful of the coming traffic from his right, tried to cross the road. It was further alleged that on account of the aforesaid act of the deceased, the right hand of the deceased struck with the left hand of Ish Kumar with the result that the deceased fell on the ground and sustained the injuries. It was denied that the deceased received any impact with the scooter. A further plea was raised that the application, as against respondent no. 2, was barred by time.

3. On the pleadings of the parties, the Tribunal framed the following seven issues—

1. Whether Mr. P.C Sharma died because of the injuries received in accident with scooter no. DIM 7491.

2. If issue no. 1 is proved whether the accident was due to rash and negligent driving on the part of the driver of the vehicle?

3. Whether the application is within time against the respondent no. 2. If not whether there is sufficient cause for condoning the delay?

4. Whether Mr. Ish Kumar has valid driving licence. Onus on respondent no. 1.

5. Whether the petitioners are legal representatives of the deceased?

6. To what amount if any are the petitioners entitled?

7. Relief.

4. By the impugned award, the Tribunal found all the issues in favour of the legal representatives of the deceased except issue No. 4, which was found in favour of respondent No. 1, and held that Ish Kumar had a valid licence, that the petitioners were the legal representatives of the deceased, that computing on the basis of contribution of Rs. 250/- per month for a period of 13 years on the basis of the life expectancy of 50 years, the petitioners would be entitled to Rs. 39,000/- and after deducting out of the same amount, a sum of Rs. 12,000/- on account of benefits received by the family on account of gratuity, pension, provident fund and insurance and a further sum of Rs. 6500 on account of prospect of lump sum payment, the petitioners would be entitled to Rs. 20,500/- as compensation and the amount was accordingly awarded to the legal representatives against the respondents with costs.

5. By appeal, FAO 81/71, the driver, owner and the insurer of the said vehicle have assailed the award of the Tribunal on various grounds and have claimed that the appeal be accepted and the award be set aside with costs throughout. In FAO 103/71, the legal representatives of the deceased have assailed the award on various grounds and claimed that the amount awarded be enhanced to Rs. 40,000/- with costs.

6. Mr. H.S Dhir, appearing for the appellants in FAO 81/71 raised the following contention:

7. On a proper appreciation of the evidence and the circumstances of the case, it could not be said that it had been established that the accident was a result of rash and negligent driving on the part of Mr. Ish Kumar.

8. In FAO 103/71, Mr. R.S Bakshi, appearing for the appellants, raised the following contentions:

(a) The Tribunal had erred in basing its decision on the life expectancy of the deceased at 50 years and ignored that in normal course the deceased would have lived beyond 60 years of age.

(b) The Tribunal erred in making deductions on account of gratuity, provident fund and insurance, in that, the said payments could not be considered death benefits but were benefits to which the legal representatives were entitled even otherwise on the retirement of the deceased and on the maturity of the insurance policy.

(c) The deduction on account of prospect of lump sum payment was unjustified as even though the award was made as early as January, 1971, the petitioners had not been able to obtain the awarded amount by virtue of the stay granted in the appeal.

9. Learned counsel for the parties confined their arguments to the aforesaid questions and none of the issues other than those covered by the aforesaid contentions was agitated.

10. The first question that, therefore, requires consideration is as to whether the material on record justified the conclusion of the Tribunal that the accident resulting in the death of the deceased was caused by rash and negligent driving of the scooter in question by Ish Kumar on the fateful day.

11. The allegation of the legal representatives in the application that the accident in question had been caused by the rash and negligent driving on the part of Ish Kumar was sought to be supported by the oral testimony of Hardev Joshi PW 2, Sher Singh PW 3, a copy of the statement of Dr. Basu Ex. PW 5/1 and site plan prepared on the spot, Ex. PW 5/2. The respondents sought to disprove the allegation by the evidence of RW 1 R.R Pandey, RW 2 V.N Sood and RW 3 Ish Kumar, respondent no. 1.

12. Haridev Joshi PW 2 claimed to be the eye witness to the accident and stated that on March 3, 1965 at 9.30 A.M he got down from a bus at the Patiala House Bus Stop and saw that the deceased while crossing the road from the other direction was hit by scooter coming from India Gate at a fast speed when the deceased was about 6 ft. away from the pavement on which the witness was standing. He further stated that the scooter driver did not give any born and in fact had tried to over-take the two buses standing parallel to each other. The scooter hit the deceased on his right leg near the knee as a result of which, the deceased took a turn and fell on the pavement in such a way that the right side of the head of the deceased struck against the pavement. He also stated that the scooter driver also fell on the road. He denied the suggestion that the decessed had suddenly come on the road from between the buses and was hit when he has on the left side of the road. He further stated that Dr. Basu came on the scene after the accident and the deceased was taken to the hospital and Dr. Basu had lodged the First Information Report. He also stated that he appeared as a witness in a criminal Court in the prosecution that followed the accident. He admitted having known the deceased for 15/16 years and has been his collegue in the office.

13. Sher Singh PW 3 also claimed to be the eye witness and stated that when he reached Patiala House bus stop, he got down from the bus and saw the deceased crossing the road and when he had crossed ¾th of the road and was about 5 or 6 ft. away from the opposite pavement, a scooter coming at a fast speed from India Gate side knocked down the deceased as a result of which the deceased was struck on the right leg. He further stated that the scooter driver did not give any horn and was going at a fast speed and was overtaking the stationary buses. He further stated that the deceased took a turn because of the impact and when fell on the road, his head striking against the footpath, as a result of which he was bleeding from his nose and ear. He added that Dr. Basu, one Sharma and he himself removed the deceased to the hospital in an unconscious state. In cross-examination, he stated that a bus reached the bus stop followed by the other in a few minutes, and that he and PW 2 had reached the spot at the same time and removed the deceased to the hospital. He denied the suggestion that three buses were standing in a line and the deceased came from behind from one of these and was on the left side of the road. The witness also admitted that he and the deceased worked in the same section.

14. The site plan Ex. PW 5/2 was prepared by Sub Inspector Ramji Lal, who was examined as PW 5, when he reached the spot on receiving the information of the accident. He also proved a copy of the statement of Dr. Basu which was recorded at the police station and was marked as Ex. PW 5/1. He took into possession the scooter and recorded the statements of the witnesses. In cross-examination, he stated that the accident took place opposite the bus stop which was 400 yards away from the India Gate crossing near Patiala House and scooter was lying close to the edge of the road. According to Ex. PW 5/2, the scooter was coming from India Gate side in the middle of the road when it suddenly swerved to the right and the accident occurred at point ‘A’ which was the left side ¼th part of the road causing impact with the deceased who had got down from a bus on the bus stop on the left of the scooter and was crossing the road to the other side. The witnesses were supposed to have seen the accident from the pavement on the right side of the road at a distance of 5/6 yards from the place of the accident from the footpath on the right side of the road. The plan does not give any indication of the distance from the point where the scooter started swerving to the right until the point of impact.

15. According to PW 6/1, which is the First Information Report based on the statement, of Dr. Basu when he got down from bus No. 19-B along with Mr. K. Gangauli, near Patiala House Annexe and was crossing the road, he saw a man being knocked down by a scooter he crossed the road and saw the man and found him unconscious and bleeding from the ears and recognised him to be a colleague working in his office by name P.C Sharma. He had been knocked by the scooter which was lying there and of which number was given to him. He immediately called the station wagon of the Directorate and took the patient alongwith B.C Sharma and Sher Singh of the same office to the Willingdon Hospital and got him admitted into the casuality department. The name of the scooter driver was given to him as Ish Kumar. Dr. Basu was, however, not examined at the trial as he was reported to have since been transferred from Delhi.

16. RW 1 M.R Pandey stated that when he reached Patiala House, the crossing signal was red and he had to stop there and got into motion only when it became yellow and respondent No. 1 Ish Kumar was ahead of him on his scooter, and that after the witness had covered 100 yards, three buses were found parked on the left side of the road. Respondent No. 1 gave a horn when all of a sudden a person emerged from the side of a bus and suddenly struck against the scooter and fell down. He further stated that respondent No. 1 was not at fault. In cross-examination, he stated that the accident took place on the left side of the road.

17. RW 2 V.N Sood stated that he was coming from Mehrauli side on his scooter, he saw that three buses were standing on left side of the road, that all of a sudden a man emerged from between those buses and dashed against the scooter of respondent no. 1 who was going at a speed of hardly 15 K.M

18. RW 3 is respondent no. 1 himself who stated that the scooter had hardly covered about 60 yards after it was put in motion on the signal, he noticed that three buses were standing on the left side of the road and that as he crossed one of the buses a person suddenly emerged from in between the buses and dashed against his scooter and that some people from his office arrived there and they removed him from the place of accident. He further stated that he did not see the man before he struck against his scooter. In cross-examination, he admitted that he had been convicted by the Criminal Court in the trial for rash and negligent driving in this case and denied the suggestion that the buses had covered 3 lanes of the road and that he had tried to overtake them. He denied that the head of the deceased struck against the footpath of the right side.

19. On a consideration of the aforesaid evidence, the Tribunal came to the conclusion that it was established that the deceased received head injury on account of rash and negligent driving of the scooter by Ish Kumar respondent no. 1 and that on account of these injuries he died in the hospital, the following day. Various contentions raised on behalf of the respondents that the evidence of the two eye witnesses was discrepeant and contradictory, that their evidence was contradictory to the plan, that the failure of the petitioners to produce Dr. Basu constituted an infirmity and that the eye witnesses were working in the same office as the deceased and, therefore, should not have been believed were dispelled. The Tribunal did not discuss the evidence of the R.Ws but generally dispelled the version of the accident put forward on behalf of the respondents.

20. Mr. H.S Dhir, learned counsel for the respondents criticised the finding of the Tribunal that respondent no. 1 was driving the scooter rashly and negligently on a number of counts.

21. In the first instance, it was contended that no reliance could be placed on the oral testimony of PW 2 Hardev Joshi and PW 3 Sher Singh, the only two eye witnesses to the accident, as both of them were admittedly working in the same office as the deceased and were, therefore, interested in the welfare of his dependents. This contention is devoid of any force for a variety of reason. In the first instance, the evidence of a witness is to be accepted or rejected on the merits of the evidence itself and not merely because a witness may be known to a party or be otherwise interested in him. If the evidence of a witness inspires confidence, it could not be rejected merely for that reason although the fact that a witness may be related to or otherwise interested in the party may be raised as a ground for a closer scrutiny of his evidence. In the second instance, the accident took place at a time which was a normal time of office attendance and the accident having admittedly taken place at a point which was just opposite the office, it was but natural that those of the employees working in that office, who used to commute between their houses and the office by bus would, by and large, be there by that time and it was, therefore, normal and natural for these persons to be present. Even respondent no. 1 in his statement as RW 3 accepted that after the accident, the deceased was taken away to the hospital by some persons working in his office. In the third place, the statements made by these person, by and large, inspire confidence and there is nothing on the record which may deviate from the truth of their statements. There is, therefore, no reason why their statements should be rejected merely because they happened to be working in the same office as the deceased.

22. It was next contended that neither the First Information Report Ex. PW 6/2 nor the application for compensation gave any details of the accident or of the rashness or negligence attributed to respondent no. 1 and that the subsequent details woven by the witnesses into the story were an attempt to bolster up a false case of rashness and negligence. This contention is equally unsustainable. The First Information Report was based on the statement of Dr. Basu, who, on his own showing as indeed of the respondents, was not an eye witness to the accident and had played part only after the accident in helping the removal of the injured to the hospital and therefore disclosed only such facts as were within his knowledge. There was no occassion for details of the rashness or negligence being given in the report at that stage. Those details could only be given by the eye witnesses, who were examined immediately the next day. So far as the application for compensation is concerned this was filed by the legal representatives who had no personal knowledge of the accident. The application has also to be made in the prescribed form, which, besides column 22, makes no provision about the details of the accident. Column 22 is general in nature which seeks such additional information as may be necessary and helpful in the disposal of the claim and does not call for any specific information regarding the details of the accident. The petitioners had, however, stated in the beginning of the application that the accident had occurred because the scooter was being driven very rashly and negligenlly by Ish Kumar. It is significant to mention in this connection that in the reply to the application, no grievance was made on behalf of the respondents that particulars of rashness and negligence had not been given. Oddly enough, the respondents even denied that the scooter was involved in any accident whatsoever. Interestingly, enough respondent no. 1 who was driving the scooter, denied that the deceased had died due to any accident with the scooter.

23. Learned counsel next referred to the site plan Ex. P.W 5/2 prepared by P.W 5, a sub Inspector of the police after the occurrence and contended that the plan had not been correctly prepared as it gave no indication of the parking of the buses nor the marks left by the application of the brakes and argued that no reliance could, therefore, have been placed on the plan. It is true that the plan. Ex. P.W 5/2 is rather sketchy and does not give all the necessary details and the measurements. But this would not be a ground to reject the plan because it furnishes substantial particulars and indicates with considerable definiteness the directions from which the scooter and the deceased were coming, the point of the impact, the swerving of the scooter to the right and the point from where the witnesses had seen the accident. A perusal of the plan makes it quite clear that the scooter was not in its extreme left but was coming in the centre of the road until a point when it swerved to the right to almost ¾th of the road apparently because a little earlier than that some buses were parked on the left and the impact took place at a point from where the witnesses could easily see the accident, being only 5/6 yards away from the point on the pavement from the right side of the road, the direction opposite to the one from which the deceased was coming to cross the road.

24. It was next contended that Dr. Basu, who was an important witness, should have been produced and the reason for his non-production, namely, his transfer from Delhi was not sufficient to absolve the petitioners of the responsibility to produce him in Court and that unless he was produced, his statement, on which the F.I.R was based could not have been taken into account. The contention must also be rejected because Dr. Basu, according to his own statement, as indeed the evidence of P.W 2 and P.W 3, was not an eye witness of the accident but came at the spot soon after the accident and the only rule attributed to him by the witnesses, as also by his own statement, had reference to the condition in which the deceased was lying and the arrangement made to remove the deceased to the hospital. His non-production was, therefore, of no consequence and could not constitute an infirmity in the case of the petitioners. Learned counsel for the respondents was, however, right in his contention that the First Information Report was not a substantive piece of evidence or a substitute for oral evidence but this is of no importance because the petition is not based on the First Information Report and it is not one of these cases where the First Information Report is of any importance because the accident is admitted and the only question is whether the accident could be attributed to rashness or negligence on the part of respondent No. 1 or not and the First Information Report, even if recorded by a witness who was not an eye witness to the accident, could not have been of any assistance one way or the other. It merely records the factum of an accident and the removal of the deceased as also the particulars of the scooter with which the accident took place and does not give further details which were provided by the witnesses on being examined by the police soon after the accident.

25. Learned counsel for the respondents next criticised the Award of the Tribunal in that it failed to discuss the respondents' evidence even though it generally rejected the version put across by the respondents. Thus criticism appears to be partly justified because while the Tribunal referred to the evidence of R.W 1, R.W 2 and R.W 3, he did not discuss the evidence further and gave no reason why the evidence was not acceptable besides generally rejecting the version of the respondents. This infirmity, however, is of no consequence because it is not possible to accept the evidence of these witnesses. R.W 3 is no other than respondent No. 1 himself while R.W 1 and R.W 2 were driving their respective scooters and were not expected at that peak traffic hour to keep an eye as to how another scooterist was behaving on the road and should have in the normal event been concentrating in driving their own vehicle. Besides they were chance witnesses and their testimony could not be preferred to that of P.W 2 and P.W 3 who were standing on the footpath and had watched the accident without any diversion. Their statements are also of a very vague kind that respondent No. 1 was not at fault. The only effect of their statements would be that respondent No. 1 could not have attained a very high speed because respondent No. 1 as indeed these witnesses according to their statement had to stop at the signal. On a consideration of the other evidence and the circumstances of the case, the version sought to be put forward by these witnesses also does not appear to be plausible and their version was, therefore, rightly rejected by the Tribunal.

26. After hearing the learned counsel for the parties, and after carefully going through the evidence I do not find any ground to differ from the conclusion of the Tribunal that the accident was caused on account of the rash and negligent driving on the part of the respondent No. 1 and as a result of the impact, the deceased was thrown on the extreme right side of the road near the footpath causing head injury to him which proved fatal. The theory put forward on behalf of the respondents that the respondent No. 1 was coming at a slow speed, had given the necessary warning and that the accident occurred because the deceased suddenly emerged out of the buses, dashed against the scooter and fell receiving injuries cannot be accepted because if the accident had happened the way it has been described on behalf of the respondents, the impact between the scooter and the deceased could not have been of the intensity which would have caused the deceased to fall on the ground which is away from the place of impact. If at the time of the impact the deceased had been to the left of the vehicle, he could not have fallen on the extreme right of the road or of the vehicle. In any event, even if deceased suddenly emerged from amongst the buses and assuming that the scooterist was coming at a normal speed the accident would still be attributed to rashness and negligence because rashness and negligence is not confined to speed alone but has relation to the caution which is required of any one wielding a vehicle on a busy road particularly at peak hours when apart from buses, cars and other vehicles, there is considerable pedestrian traffic particularly in the proximity of various Government establishments. In such a situation, it was the duty of any one wielding a vehicle not only to drive it at a normal speed but to do it with skill and caution as to avoid an impact with pedestrians. Even if the deceased had suddenly emerged from between the vehicles, the scooterist should have been able with due diligence and caution to anticipate it. The accident was obviously the result of lack of caution and foresight on the part of the scooterist and the conclusion of the Tribunal, therefore, appears to me to be fully justified.

27. It is well known that the traffic conditions on the Delhi roads are near chaotic particularly during peak hours with recklessly driven trucks, taxies, buses, speeding cars and swinging scooterists, with easy manoeuvrability exposing the pedestrians as indeed the other road users and themselves to constant danger of fatal accidents. In such a situation those wielding automobiles with the potential danger of accident have a special responsibility and are expected to drive their machines not only at normal permissible speed, but with considerable care, skill and caution so as to anticipate all reasonable eventualities, and prevent accidents. The fact that some buses were parked on the left of the road off-loading passengers should have put the passing vehicular traffic to guard against a possible impact with some one who may come out of the blind alley to cross the road. That the deceased did suddenly emerge, as contended on behalf of the respondents, could not, therefore, absolve the respondents of responsibility for the accidents and the consequent liability.

28. Since this is the only question raised on behalf of the appellants in this appeal, F.A.O 81/71 must fail.

29. In the other appeal, the main question that require considerations is as to the quantum of compensation and the propriety of deductions made on various counts as indeed the question as to the average life expectancy of a person for the purpose of computing the benefit.

30. On the question of the life expectancy of the deceased, the learned counsel for the appellants contended on the basis of Shiv Prasad Gupta v. S.N Sabir Zaidi . 1967 A.C.J 321.; Madhya Pradesh State Road Transport Corporation Bhopal v. Smt. Munnabai . 1967 A.C.J 214.; Amarjit Kaur v. Vanguard Insurance Co. Ltd. . 1969 A.C.J 386.; and Himachal Government Transport Simla v. Joginder Singh . 1970 A.C.J 37., that the average span of life in India was put at a figure ranging from 60 to 75 years and sought enhancement of compensation on that basis, in that the Tribunal based it at 50 years.

31. Learned counsel for the respondents, on the other hand, justified the life span of 50 years on which the award was based and sought support from Municipal Corporation of Delhi v. Kuldip Lal Bhandari . 1969 A.C.J 276.; Perry v. Cleaver . 1969 A.C.J 383., sought to distinguish the decisions relied upon on behalf of the appellants.

32. The Tribunal capitalised the expected contribution of the deceased to the family for 13 years on the basis of the life expectancy of about 50 years and sought support for this conclusion from Union, of India v. Varadambal . 1969 A.C.J 220.; Municipal Corporation Of Delhi v. Subhagwanti & Others . 1966 A.C.J 57.; Vimal Rai v. Gurcharan Singh . 1967 A.C.J 115. and Satya Vati Devi v. Union of India . 1967 A.C.J 98..

33. After hearing the learned counsel for the parties and giving the matter my anxious consideration, I am of the view that the capitalisation of the benefit of the family of the deceased on the basis of 50 years span of life appears to me to be on the lower side and there was no justification to deprive the family of the benefit of the aforesaid amount till atleast the age of super-annuation of the deceased.

34. According to the evidence, the deceased was in perfectly good health. His youngest child was aged 2½ years. The deceased was working as an Assistant and there was nothing to indicate that the duties discharged by the deceased were expected to be of onerous nature. There was also no evidence to indicate that the deceased was suffering from any infirmity or there was any other reason why the deceased would not live until atleast the age of superannuation. The normal age span in India is shorter as compared to the rest of the world, primarily crosses the infantile stage, there is no reason why, in the absence of any special circumstances, he should not live his normal span which has been fixed in India at age ranging between 55 to 75 depending upon the various circumstances including the family heritage, the surroundings in which a person lives, the nature of his work and the extent of his income. Even the Government statistics get the present average life span in India at 60/63. In Shiv Prasad Gupta v. S.N Sabir Zaidi the life span in India was put by a Division Bench of the Allahabad High Court at 70. In M.P.S.R.T.C Bhopal v. Smt. Munnabai (Supra), it was put at 75 by a division Bench of the Madhya Pradesh High Court and it was held that when a person is hale and hearty, it can be inferred that his probable expectancy of life might be to the extent that other members of his family might have been normally living. In that case, the elder brother of the deceased had been living upto that age. In Amarjit Kaur v. Vanguard Insurance Co. Ltd., it was held by a Single Judge of this Court that although the life expectancy in India was about 50 years but the average was low due to infant morality and that the deceased in that case having survived the infancy period, might have lived at any rate upto the age of 60 or 65 years. There was no history of longivity of the family in that case. The deceased in that case who was of thin built was carrying on business of running a motor workshop which according to the learned Judge demanded hard work. On a consideration of the various decisions considered by his Lordship, it was, held that where the deceased died of an accident at the age of 40, the remaining life expectancy would have been 15 years. In Union of India v. Varadambal, which has been relied upon by the Tribunal to arrive at a life span of 50 years, the Madras High Court was concerned with a hand-cart puller and was earning Rs. 150/- per month while the deceased in the case reported as Khidni v. Dayal Singh, was earning Rs. 50/- per month only. In Muncipal Corporation of Delhi v. Sub-hagwanti, which is a decision of the Supreme Court, the life span was not in dispute and no question was raised with regard to it. In Vimal Rai v. Gurcharan Singh, the earlier decision of the Supreme Court in Gobald Motor Service Ltd. v. R.M.K Veluswami, was followed with-regard to the principles as to quantification of compensation and the award was not disturbed because the High Court found that the principles had been taken into consideration by the Tribunal in arriving at the figure of compensation. There is no discussion in that case as to the normal life span nor is there any such discussion in the Supreme Court judgment on which it was relied. The question of span of life was apparently not raised even in the Supreme Court. Having regard to all the circumstances, of the case, I am of the view that the Tribunal was in error in computing the benefit on the basis of life span of 50 years. The proper basis of computation would have been to arrive at amount on the basis that the deceased would have had a normal span of atleast 55 years and to have reached the normal age of superannuation in Government service. This would entitle the petitioners to an additional compensation for a period of 5 years at Rs. 250 per month.

35. The next question that requires consideration is as to the propriety of deduction made by the Tribunal on account of various counts received by the dependents on account of proceeds of life insurance, pension, provident fund and gratuity following the death of the deceased. In computing the net compensation payable to the petitioners, the Tribunal has made the following deductions:

1. Rs. 2400/- on account of gratuity 2. Rs. 3600/- on account of pension 3. Rs. 3000/- on account of provident fund 4. Rs. 3000/- as insurance Total Rs. 12,000/-

36. The answer to the question to an extent would depend on the principles which should govern the computation of compensation on a claim under the Act. The legal position with regard to such principles does not appear to be very clear. As is well-known, prior to the Fatal Accident Act, 1855, no action or suit was maintainable in any Court in India against any person who by any wrongful act, neglect or default might have caused the death of another person. The aforesaid Act, according to its preamble was enacted to provide compensation to families for loss occasioned by the death of a person caused by action, able wrong. The aforesaid Act, however, provided for compensation or damages:—

(1) for the loss caused by the death of the person as a result of the accident to the representatives of the deceased person, namely wife, husband, parent and child; and

(2) for any pecuniary loss to the estate of the deceased.

37. Section 1-A of the Act provided that

“The Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought.”

38. Section 2 of the Act authorised the administrator or representative of the deceased to make a claim and recover “any pecuniary loss to the estate of the deceased occasioned by such wrongful act, neglect or default…….” This was followed by the amendment in the Act by the Motor Vehicles (Amendment) Act 100 of 1956 which substituted the then Section 110 of the Act by the present sections 110 to 110-F of the Act which made a special provision providing for adjudication of claims for compensation in respect of accidents involving the death or injury to persons arising out of the use of Motor Vehicles. Section 110-A provides that an application for compensation arising out of an accident of the nature specified in section 110(1) may be made by the persons who has sustained injury, or where death has resulted from the accident by the legal representatives of the deceased, or by an agent duly authorised by the person injured or the legal representatives of the deceased, as the case may be and also prescribed the period within which such an application may be made. section 110-B provides that on receipt of an application for compensation made under section 110-A the Tribunal shall after giving the parties an opportunity of being heard, hold and enquiry into the claim and may make award determining the amount of compensation “which appears to it to be just.”

39. In the case of Gobald Motor Service Ltd. v. R.M.K Veluswami, which is the leading case on the subject, the Supreme Court while dealing with a claim under Fatal Accident Act after referring to the mode of determining the damages laid down by Viscount Simon in Nance v. British Columbia Electric Railway Co. Ltd., laid down that “shortly stated, 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 source comes to them by reason of the death, that is, the balance of loss and gain to a dependent by the death must be ascertained.”

40. There has been some controversy in India whether the aforesiad principles of computation of compensation laid down by the Supreme Court in a case under the Fatal Accident Act or for that matter, the principles laid down from time to time for the purpose of computation of benefit under the Act should or should not govern the award of compensation to the legal representatives on a claim under the Act and the examination of the question by the various courts have produced a conflict of judicial opinion.

41. In Sheikhpura Transport Co. Ltd. v. Northern India Transporters' Insurance Co. Ltd. the Supreme Court held that under section 110-B of the Motor Vehicles Act, the Tribunal is required to fix such compensation which appeared to it to be just and that the power given to the Tribunal in the matter of fixing compensation under that provision was wide. The question whether the compensation under that provision had to be fixed on the same basis as is required to be done under the Fatal Accidents Act, 1855 was, however, left open although the principles laid down by the Supreme Court in the earlier decision of Gobald Motor Service (supra) were reiterated and apparently followed in a case under the Act.

42. In the case of Mohammed Habibullah v. K. Seethammal a Division Bench of the Madras High Court held that section 110 to 110-F of the Motor Vehicles Act were not only a self-contained code for the adjudication of claims for compensation on behalf of the victim of a motor accident but also a complete machinery for the adjudication of such claims, and that such a claim had nothing whatever to do with proceedings under the Indian Fatal Accidents Act or with the said Act as such. A similar view was expressed by D.K Mahajan J. in the case of Veena Kumari Kohli v. Punjab Roadways, wherein it was held that it was idle to suggest that the Tribunal had gone wrong in not determining the claim on the principle enunciated by the Supreme Court in the case of Gobald Motor Service (Supra). Similar view was expressed by a Division Bench of this Court in Ishwari Devi v. Union of India, and it was held that while Fatal Accidents Act 1855 was a general law providing of compensation to the representatives of the deceased or to his estate, the Motor Vehicles Act was a special law which provided for adjudication upon claims for compensation in respect of accidents involving the death of or injury to persons arising out of the Motor Vehicles Act and that the proceedings under the Act, therefore, were not to be regulated by the provisions of the Fatal Accidents Act. The learned Judges relied on the decision of the Madras High Court and of the Punjab High Court referred to above. The above view, was, however, not accepted by the Madhya Pradesh High Court and a Division Bench of that Court in the case of Kamla Devi v. Kishan Chand, held that the Claims Tribunal enquiring into a claim for compensation under the Act was bound to apply the law as contained in Fatal Accidents Act because according to their Lordships, sections 110 to 110-F merely laid down procedure and power of the Tribunal and “the sections do not deal with law at all”. It was further held that the power under section 110-B to make an award and determine the amount of compensation which appears to the Tribunal to be just ‘does not create any new basis or extent of liability’. All these decisions were received by a later Division Bench judgment of Punjab and Haryana High Court in Damyanti Devi v. Sit a Devi and it was held that the provisions of the Act were wider than those of the Fatal Accidents Act and there was, therefore, no conflict between the two, and that “the principles for determining compensation which had been evolved under the provisions of the Fatal Accidents Act could be applied to the application under the Motor Vehicles Act while determining the amount of compensation considered just.” It was, however, added that the restrictive provision of section 1-A of the Fatal Accidents Act, however, was not applicable to a claim under the Act, and that no separate amount had to be determined for the legal representatives and the estate under the Act unlike under the Fatal Accidents Act. It may, however, be pointed out that in the decision of this Court in the case of Ishwari Devi (supra) eventually it was however held that while dealing with a claim under the Act, the Tribunal has only to consider what appears to it just compensation on the facts and circumstances of each case and it need not strictly follow and apply the basis of the assessment of compensation indicated. In the various decision under “the Fatal Accidents Act or under the English Law” It was, however, observed that the said decisions, Indian or English, can at the most if at all, be of general guidance and it was added that the Claims Tribunal may, in deciding the just compensation in case, bears in mind and apply any general principle or principles laid down in the aforesaid Indian or English decisions as far as they may be applicable and in so far as they may promote the interest of justice on the facts and circumstances of each case. In other words, the said principles laid down in the decisions under the Fatal Accidents Act may be used or applied if they, in the opinion of the Tribunal would serve as a proper measure of what is just compensation in the facts and circumstances of the case in hand.” In both the Punjab and Delhi cases, the guidelines laid down by the Supreme Court in the case of Gobald Motor Service Ltd. (supra) and some of the English cases referred to in the judgment were eventually followed in arriving at their Lordships conclusion.

43. The legal position with regard to the exclusion from consideration of any amounts that may be received by the dependants on account of insurance, provident fund, pension, gratuity etc. is also far from clear and the examination of the question by the Courts both in England and in India have led to a conflict of judicial opinion. Until recently, it was believed in England that at common law, the general principle of deduction applied to life insurance and pension benefits and reference may be made in this connection to the case of Grand Trunk Rail Co. of Canada v. Jennings and of Carling v. Lebbor but the rule in England was reversed by a series of legislative measures such as the Fatal Accidents Act, 1959 and Law Reform (Personal Injuries) Act 1948 culminating in section 2(1) of the Fatal Accidents Act 1959 which provides that in assessing damages in respect of a person's death in any action under the Fatal Accidents Act 1946…………………” there shall not be taken into account any insurance money, benefit, pension or gratuity which has been or will or may be paid as a result of the death”. Some new light on the subject was, however, thrown by House of Lords in a recent case of Parry v. Cleaver, in which Lord Reid, speaking for the majority, reviewed a number of earlier English decisions touching the question and held that in the computation of damages for loss of earning capacity the ill-health award to which the appellant was entitled, although it would have to be brought into account in respect of his loss of retirement pension, was not deductible in assessing damages for his loss of earnings. The famous case of Browning v. War Office was disapproved and an earlier decision of the Court of Appeal, (1967) 2 All E.R 1168 was reversed. The House of Lords was not concerned with the Fatal Accidents Act, 1959 but Lord Reid referred to section of that Act and observed as follows:—

“If public policy, as now interpreted by Parliament, requires all pensions to be disregarded in actions under the Fatal Accidents Acts, I find it impossible to see how it can be proper to bring pensions into account in common law actions. Plaintiffs were formerly worse off under Lord Campbell's Act and I can think of no reason why the position should now be reversed so as to make them worse off at common law. In my judgment, a decision that pensions should not be brought into account in assessing damages at common law is consistent with general principles, with the preponderating weight of authority, and with public policy as enacted by Parliament and I would therefore so decide.”

44. It was further held that pension was fruit of services rendered by an employee in the past and was in the nature of deferred wages payable under a contract of employment for past services and therefore just as the amounts received by an injured under a contract of insurance were not deductible, the amount of disablement pension received by an employee were also not deductible.

45. This decision was followed in a recent case of the High Court of Kuala Lumpur in the case of Raja Mohktar Bin Raja Yacoob v. Public Trustee, Malaysia, wherein it would held that on account of its persuasive value, the decision of the House of Lords was entitled to the highest respect even though not binding on that Court and it was held that pension was ex-gratia payment made by Government to its employee in respect of their past conduct and services and should not, therefore, be taken into account while assessing compensation for injuries sustained in an accident.

46. The legal position with regard to these deductions has not been uniform in India. In 1967 A.C.J 82 (Supra), a Division Bench of the Punjab High Court justified the deduction on account of the proceeds of an insurance policy although there is no discussion as to the rationale for such a deduction and according to the report, the claim to the contrary was not pressed. This decision has, however, not followed in the later Division Bench judgment of the Court in the case of Bhagwanti Devi v. Sita Devi, in which Tuli, J. speaking for the Court referred to the provisions of section 2(1) of the English Act of 1959 the English cases of Bradburn v. Great Eastern Railway Co. and Delby v. India and London Insc. Co. and held that the deduction on account of proceeds of insurance policy was unjustified because any provision made by the deceased himself by taking out a policy of insurance could not be said to be a benefit derived by the legal representatives on account of his death. It was further held that the benefit accrued not because of the tortious act of the wrong doer in causing the death of the policy holder but had its genesis in a contract which the deceased had entered into with the insurer. His Lordship disapproved the deduction since in determining the compensation, the Court had not taken into consideration the savings which would have been made by the deceased during his life time if he had lived his normal span. In Ishwari Devi v. Union of India, a Division Bench of this Court assumed that the proceeds of life insurance policy could not be deducted but did not decide the question as the statement with regard to the receipt of insurance was vague. The legal question as to the propriety of such a deduction was apparently neither raised nor considered. In Unique Motor & General Insurance Co. Ltd. v. Mrs. Krishna Kishori, a single Judge of the Punjab & Haryana High Court, however, upheld the award where the amount of insurance proceeds had been deducted. There was, however, no discussion on the question and the matter was apparently not put in issue. In Joginder Nath v. Shanti Devi, a single Judge of the Punjab High Court approved the deduction in respect of provident fund relying on an earlier decision of the Punjab High Court in the case of Dr. Ram Saran v. Shrimati Shakuntla Rai. There is, however, no further discussion in this decision. In Life Insurance Corporation of India v. Legal representatives of deceased Naranbhai Munjabhai Vadhia, a Division Bench of the Gujarat High Court relying on the authority of Parry v. Cleaver (supra) held that the insurance and retirement-cum-gratuity benefits could not be deducted and it was held that the insurance policy amounts were collateral benefits which the deceased had brought with his own money and it was a benefit derived by way of prudent savings effected for his own benefit under a contract of which the benefit would not go to the tortfeaser. It was further held that it was only pension which was earned after the contributions had ceased that it assumed the character of wages and which alone could be deducted when computing the economic loss of future earnings or loss of wages. In Mohinder Kaur v. Manphool Singh, however, a Single Judge of this Court allowed the deduction on account of pension but there is no further discussion of the question and the propriety of such a deduction was apparently neither raised nor considered. It, thus, appears that there is considerable judicial authority both in England and in this country in favour of exclusion of benefits received by the legal representatives on account of life insurance policy, pension, gratuity, provident fund and other such benefits from consideration in determining the amount of compensation which appeared to the Tribunal to be just on account of loss of pecuniary benefit arising out of death and this exclusion would appear to me to be just and reasonable because these are benefits for which the deceased had paid. 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 inheritence could be related to such an event. There would be no justification, therefore, to give the benefit of these payments to the wrong doer who, by his negligent act, has caused the death of a person. Such a conclusion would be justified even if the principles enunciated by the Supreme Court in the case of Gobald Motor Service (supra) were to regulate the determination of compensation under the Act because even on the application of the aforesaid principles, it appears to me that there is a clear distinction between benefits received on account of death and those that are merely payable on the death of a person. The former arise out of death and would not have been available without it, while the latter are benefits which are available independently of death but are payable on death. The deduction made by the Tribunal on these counts must, therefore, be ignored in computing the compensation to which the dependent would be entitled.

47. The only other question that remains to be considered is the deduction of Rs. 6,500/- made on account of the fact that instead of periodic benefits, the dependants would be getting the amount of compensation in lumpsum thereby obviating various uncertainities and is a deduction which is supported by considerable authority, but, though based on sound principle, is not a rule universal applicable and has to be applied in the context of such counter balancing factor as may be present in a particular case, such as increasing cost of living and proportional devaluation of the rupees, the time lag between the death and the Award as well as between the Award and the actual payment. Such deduction, however, would not be justified on the facts of the present case for two reasons. In the first instance, the benefit of receiving lumpsum payment is wholly illusory. The award was made on January 14, 1971 and the dependents have not as yet received a single penny out of the compensation awarded to them and the matter is at the first appellate stage. The litigation is likely to continue further and I would not be surprised if another few years have elapsed before the dependants could receive the compensation to which they are entitled. Secondly, the runaway inflation and the consequent devaluation of the rupee has considerably reduced the quantum of compensation in its real worth and being so, it would be unreasonable in the present case to make any deduction on account of the prospect of getting the benefit in one lumpsum. The view that I have taken of the matter finds support from Prem Singh v. Tika Ram Narain Devi v. Dev Raj; Khidni v. Dayal Singh; Himachal Govt. Transport Simla v. Joginder Singh,, and Damyanti Devi v. Sita Devi. The Tribunal has allowed Rs. 20,500 by way of compensation. By adding to it a sum of Rs. 18,500 on account of deduction, which have been disallowed and a sum of Rs. 15,000/- on account of contribution for an additional period of 5 years the appellants would be entitled to the enhancement of the compensation payable to Rs. 54,000/-. The appellants have, however, confined the claim in the application and the appeal to Rs. 40,000/-. The compensation would therefore, be enhanced to that figure. The appellants would also have their costs in this appeal.