Kalagate, J.:— This is an appeal under section 110D of the Motor Vehicles Act, 1939 (which hereafter shall be referred to as the Act) against the award made by the District Judge and Motor Accidents Claims Tribunal, South Kanara, on the 3rd day of December 1964.

2. On June 9, 1964, at about 7-30 p.m Uggappa Poojary, husband of the appellant, died in a motor vehicle accident at Guthige in Bangra Kulur village, Mangalore Taluk. The appellant then made an application under section 110A of the Act for compensation arising out of the accident involving the death of her husband. Under section 111A of the Act, the State Government is empowered to make rules to carry out the purposes of section 110 to 110E of the Act.

3. Section 110B requires the Claims Tribunal on receipt of an application for compensation, to hold an inquiry into the claim and section 110C provides that in holding such inquiry the Claims Tribunal may, subject to any rules that may be made in that behalf, follow such summary procedure as it thinks fit, and then make an award specifying the amount which shall be paid by the insurer to the person or persons to be mentioned by it.

4. Rules 342 to 346 in Chapter VII of the Rules deal with the procedure to be followed by the claims Tribunal. It would be seen from the scheme of the Rules that the Claims Tribunal has to make, before framing the issues, necessary inquiry and, for that purpose, it shall issue notices to the owner of the motor vehicle involved in the accident, and also to the insurer, calling upon them to file a written statement in respect of the claim raised in the application, and then frame issues upon which the right decision of the case depends and then proceeds to record evidence thereon and make an award.

5. In pursuance of the notices issued the owner of the motor vehicle and the insurer filed their objections to the claim made by the petitioner. Their contentions are similar though they filed separate written statements. They denied that the death of Uggappa was caused by rash or negligent driving by the driver of the vehicle. They also denied that the deceased was earning anything for the family. They contested the correctness of the age of the deceased given in the petition. Thus they denied their liability to pay any compensation to the petitioner.

6. The Claims Tribunal then framed the following two issues:

(1) Does the petitioner prove that the deceased died as a result of the rash and negligent driving of the vehicle?

(2) Whether the petitioner is entitled to claim any compensation and, if so, what amount?

7. And on the evidence, found both the issues in the affirmative and made the award in favour of the appellant and against the respondents directing them to pay a sum of Rs. 959-94 P. to the petitioner, but the petitioner not being satisfied by the award has filed this appeal.

8. Mr. U.L Narayana Rao, learned Advocate for the appellant, has raised two contentions in support of the appeal. The first is that the Claims Tribunal was in error in holding that the application made by the appellant was not on behalf of all the legal representatives of the deceased, and the second is that the quantum of compensation awarded to the petitioner is not in accordance with the principles governing the determination of such compensation.

9. Before we proceed to consider these two contentions, it may be stated that the first respondent, the owner of the motor vehicle, though served, has not appeared in this Court, and Mr. M.P Somasekhara Rau, who appears for the insurer, has not disputed the finding that Uggappa, the husband of the appellant died as a result of a motor vehicle accident caused by the rash and negligent driving of the driver and, therefore, we are relieved of the task of considering the correctness of the finding on the first issue recorded by the Claims Tribunal.

10. The first question then which requires determination is whether the application made by the appellant was made only on her behalf or was made on behalf of all the legal representatives of the deceased Uggappa.

11. The application made by the appellant is in the form prescribed by Rule 343 mentioning the details required by the various columns therein. In column No. 22 which provides for “Any other information that may be necessary or helpful in the disposal of the claim”, she has stated that she (petitioner) was entirely depending upon her husband for her livelihood, that she is having five children, one of whom, a boy, is schooling, and the other four female children are of marriageable age, thus indicating that the application was made on their behalf also.

12. To this application though objections have been filed on behalf of the owner of the motor vehicle and the insurer, all that they state is they do not know the existence of the five children, but it is not disputed that they are the legal representatives of the deceased The Claims Tribunal has not raised any issue as to whether the five children are or are not the legal representatives of the deceased. Yet, in the body of the order, it has observed that no claim has been made by the children Mr. Narayana Rao contends that this observation of the Tribunal is not warranted by the material on record. He states that all the five legal representatives of the deceased have been mentioned in the application and that the appellant has made the application in accordance with the form prescribed and, therefore, it is but reasonable to hold that the application is made on behalf of the legal representatives of the deceased.

13. Mr. Somasekhara Rau for the insurer states that it is not clear from the application that all the legal representatives have made the application. But, in our view, the application as made in the form prescribed must be held, in the circumstances, to have been made on behalf of all the legal representatives of the deceased, and the observation made by the Claims Tribunal, even without raising an issue, that the claim petition has been made only on behalf of the widow, and not on behalf of her children, is not warranted. Therefore, we, on the materials before us, have come to the conclusion that the application for compensation is made on behalf of all the legal representatives of the deceased Uggappa.

14. The next question relates to the quantum of compensation to be awarded to the legal representatives of the deceased, and the determination of this question is by no means easy. But the Courts have envolved a method of calculating the value of dependency or the amount of pecuniary benefits that the dependant could reasonably expect to have received from the deceased. The principles governing the determination of the compensation to be awarded, in such circumstances, have been stated by the Supreme Court in Gobald Motor Service Ltd. v. R.M.K Veluswami . A.I.R 1962 S.C 1 accepting the principles enunciated by the two English decisions viz. Davies v. Powell Duffryn Associaed Collieries Ltd. . 1942 A.C 601. and Nance v. British Columbia Electric Railway Co. Ltd. . 1951 A.C 601..

15. In Davies v. Powell Duffryn Associated Collieries Ltd. at page 617, it is stated that:

“The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend on the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basic figure which will generally be turned into a lump sum by taking a certain number of years purchase. That sum, however, has to be taxed down by having due regard to uncertainties, for instance, that the widow might have again married and thus ceased to be dependant and other like matters of speculation and doubt………”

16. This principle which has been concisely stated by Lord Wright, has been stated somewhat elaborately by Viscount Simon in Nance v. British Columbia Electric Rly. Co. Ltd. thus:

“The claim for damages in the present case falls under two separate heads. First, 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 he probably have applied out of his income to the maintenance of his wife and family?… A proper approach to these questions is, in their Lordships' view, one which takes into account and gives due weight to the following factors; the evaluation of some, indeed most of them, can, at best, be but roughly calculated.

17. Under the first head—indeed, for the purposes of both heads—it is necessary first to estimate what was the deceased man's expectation of life if he had not been killed when he was; (let this be ‘X’ years) and next what sums during these X years he would probably have applied to the support of his wife. In fixing X, regard must be had not only to his age and bodily health, but to the possibility of a premature determination of his life by a later accident. In estimating future provision for his wife, the amounts he usually applied in this way before his death are obviously relevant, and often the best evidence available; though not conclusive, since if he had survived, his mean might have expanded or shrunk and his liberality might have grown or wilted in the present case it is known that in the years 1945-1946, which immediately preceded his death, his ‘drawings’ from his business averaged $ 2,600 per annum. His wife's maintenance was derived from, and could not have exceeded, these drawings what proportion of such amount he infact contributed to her support is a matter of guess work, but both his widow and her sister gave him a good character for generosity. He was a ‘good provider’. Supposing, by this method, an estimated annual sum of $Y is arrived at as the sum which would have been applied for the benefit of the plaintiff for X more years, the sum to be awarded is not simply $Y multiplied by X, because that sum is a sum spread over a period of years and must be discounted so as to arrive at its equivalent in the form of a lump sum payable at his death as damages. Then a deduction must further be made for the benefit accruing to the widow from the acceleration of her interest in his estate on his death intestate in 1949 (she came into 6,500, one third of his estate, X years sooner than she would otherwise have done) and of her interest in sums payable on a policy of $ 1,000 on his life; and a further allowance must be made for a possibility which might have been realised if he had not been killed but embarked on his allotted span of X years, namely, the possibility that the wife might have died before he did. And there is a further possibility to be allowed for, though in most cases it is incapable for evaluation namely, the possibility that in the events which have actually happened the widow might remarry, in circumstances which would improve her financial position.”

18. Referring to the latter decision, their Lordships of the Supreme Court in Gobald Motor Service case stated:

“Viscount Simon then proceeded to lay down the mode of estimating the damages under the first head. According to him, at first the deceased man's expectation of life has to be estimated having regard to his age, bodily health and the possibility of premature determination of his life by later accidents; secondly, the amount required for the future provision shall be estimated having regard to the amounts he used to spend on her during his lifetime, and other circumstances; thirdly, the estimated annual sum is multiplied by the number of years of the man's estimated span of life and the said amount must be discounted so as to arrive at the equivalent in the form of a lump sum payable on his death; fourthly, further deductions must be made for the benefit accruing to the widow from the acceleration of her interest in his estate; and, fifthly, further amounts have to be deducted for the possibility of the wife dying earlier if the husband had lived the full span of life; and it should also be taken into account that there is possibility of the widow remarrying much to the improvement of her financial position. It would be seen from the said mode of estimation that many imponderables enter into the calculation. Therefore the actual extent of the pecuniary loss to the respondents may depend upon data which cannot be ascertained accurately, but must necessarily been estimate, or even partly a conjecture. 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 dependant by the death must be ascertained.”

19. These decisions, in our view would afford a reasonable guidance to Courts in determining the quantum of compensation. Therefore, all that we need do is to apply the above principles to the facts of the case and determine the compensation to be awarded to the legal representatives of the deceased, though the application of the principles in a given case may not always be easy.

20. Then, while determining the quantum of compensation to be awarded to the legal representatives, the first thing we have got to do is to ascertain the amount of wages which the deceased was earning at the time of his death; then we must find out how much the deceased would have been required to spend on himself for his own personal expenses. The balance thus left will be the basic figure which has to be turned into a lump sum by multiplying it by a number of working years or expected duration of life of the deceased. The sum thus arrived at however, has to be taxed down as the dependants are getting the amounts in one lump sum and secondly, on account of uncertainties of life.

21. We will, therefore, ascertain, in the first instance, the amount of wages that the deceased was earning at the time of his death. On this, the appellant has led evidence by examining herself and one Abbubakar, a beedi merchant. She has also stated in her application that her husband was earning Rs. 3-50 P. per day. In her deposition, she has stated that he, the deceased, was rolling beedies between 2,000 and 2500 per day and was earning Rs. 4 as wages Abbubakar, her witness, has deposed that the deceased used to give him daily about 2,000 to 2,500 beedies and the wages were Rs. 2 per thousand beedies. Thus, according to the appellant the wages would be Rs. 4 per day. However, the evidence of P.W 5 is that he has 75 workmen under him and he distributes a sum of Rs. 15 per day by way of wages. This works out on an average to Rs. 2 per day per worker. He has also stated that about 55,000 beedies are rolled out by his workers numbering about 75 Each worker, therefore, rolls about 700 to 800 beedies per day. Taking into account the fact that the deceased was not actually working in any factory but was doing work in his house, it would be safe to take he turnover per day at 1000 beedies. The petitioner and PW 5 say that the wages paid for 1000 beedies was Rs. 2. The Claims Tribunal therefore, on the evidence, came to the conclusion that it would be reasonable to hold Rs. 2 as daily wages of the deceased. We after careful consideration of the evidence feel inclined to sustain its finding, and hold that the wages or the earning of the deceased was Rs. 2 per day. Deducting four Sundays in a month, we will take 26 days as working days. Thus Rs. 52 would be his monthly earning wages. Out of that, we may deduct Rs. 12 for his own personal expenses. Then what remains is Rs. 40 per month. So Rs. 480 would be his annual earning.

22. Now we must find out the multiplier i.e the number of working years of the deceased or the expected duration of his life. This again is a difficult question to be determined. In the instant case, however, we propose to determine this question on the facts of this case.

23. What was the age of the deceased at the time of his death requires determination first since there is a controversy about it. The appellant has, in her application, given the age of the deceased as 45 years. In her evidence also, she has stated that he was 45 years old at the time of his death.

24. P.W 2, the other witness has stated that the deceased, at the time of his death was pretty old. Therefore, his evidence is not of much assistance.

25. Then there is Ex. P-1, the inquest report, wherein the age of the deceased is stated to be 55 years.

26. The Claims Tribunal has taken the age of the deceased to be 55 years, at the time of his death. But it appears to us that it would not be reasonable to hold that deceased was 55 years old at the time of his death relying on Ex. P-1. The wife is normally expected to know the age of her husband. Making, therefore some allowance for the statement made by his wife, it would be reasonable to hold that the deceased was 50 years old at the time of his death.

27. The Claims Tribunal has stated that the activity in life normally ceases in our country after 65 and, therefore, it may be safely held that a man's earning capacity would last till the age of 65. Mr. Somasekhara Rau who appears for the insurer did not contest that the deceased could have survived till the age of 65 years. We, may therefore, take that if the deceased were not to die as a result of the accident, he would have survived for 15 years more. Thus 15 would be the multiplier. We have stated above that Rs. 480 would be his annual earning, and multipying, this figure by the multiplier 15 it would come to Rs. 7,200.

28. From this sum of Rs. 7,200, we have to make some deductions. These deductions, as stated before, have to be made as the family is getting a lump sum and secondly, on account of uncertainties of life such as the deceased might have died, before the span of his life or the widow may remarry and such others. Now what should be the percentage of deduction to be made is again a matter which must depend upon the facts of each case. A perusal of the decision gives an impression that the deductions have been made between 10 and 20 per cent. This Court in State of Mysore v. Gouri Vithal Deshabandari, has given 20 per cent deduction. Since the person at the time of his death in the instant case was 50 years old, we would reduce the amount by 0 per cent. So reduced, the net figure we get is Rs. 5,760, out of which we have got to determine what the deceased might have spent for his own living and contributed towards the maintenance of his family.

29. What proportion of amount which the deceased, in fact, contributed towards the maintenance of his family is a matter of evidence, and would depend on the facts of each case and, in the absence of any evidence, it would be a matter of guess work. Uggappa, the deceased in the instant case, was both a husband and a father. In such circumstances, it would be proper first to calculate the family dependency, and when the total sum due to the family is arrived at, how that total sum is to be apportioned is no concern of the insurer; but in cases where the apportionment is necessary, the amount may be apportioned among the wife and each of the children separately. What the deceased would have spent on his own maintenance must again depend upon the evidence produced in a given case. But if no evidence has been produced then it will be a matter of pure speculation, and though an analysis of the existing cases may afford a general guidance in the matter, yet it is not an easy matter to lay down any test which would embrace all cases. The approach to each case must remain empirical.

30. However, it may be stated that where there are only two persons i.e husband and wife, then, in the absence of the evidence, it would be reasonable to state that both of them would share the income half and half. But in case where there are children, what should be taken as the dependency of the children on the earnings of the deceased, is a moot question but normally the dependency of the children cannot be in the same proportion as that of the adults. Therefore, in this case, in the absence of any evidence requiring us to depart from the above rule, it would not be unreasonable to state that the dependency of the children would be half that of the mother. This is what has been accepted by this Court in the decision in State of Mysore v. Gouri Vithal and with respect, we agree with that view.

31. Thus taking 2 shares for the deceased father, 2 shares for the mother and one share for each of the children, we will have 9 shares. So the father's share out of these 9 shares would be 2/9th i.e Rs. 1,280. Therefore deducting this amount as the expenses of the deceased for his living, the remaining amount of Rs. 4,480 would be the value of the family dependency for which an award will have to be made.

32. But if this amount of family dependency is to be apportioned between the widow and the children, the apportionment would be as follows: the value of the dependency of the widow would be Rs. 1,280, and one-half of this viz. Rs. 640 of each child. There are five children. Therefore, Rs. 3,200 would be the value of dependency of the children. Thus Rs. 1,280 the value of the dependency of the widow and Rs. 3,200 the value of the dependency of the children would come to Rs. 4,480 i.e the value of the dependency of the family of the deceased. This, in our view, is the value of the dependency of the family of the deceased and that should be the amount which must be awarded to the legal representatives of the deceased. Consequently we make an award for that amount in favour of the deceased i.e, the widow and five children, and against the insurer.

33. Our attention was, however, invited to the decision of this Court in Seethemma v. Benedict D'sa wherein it is stated that “A claim for compensation can be made under section 110A in Chapter VIII of the Motor Vehicles Act not only against the owner of the motor vehicle and the insurer, but also against the driver whose negligence produces the claim for compensation”. In the present case, the owner of the car against whom the award is made, has not appeared before us and challenged the legality of the award made against her. Therefore it is not necessary for us to examine whether such an award could not have been made against her, but it is clear that when an application has been made under section 110A of the Act, the Claims Tribunal could make an award under section 110B read with Rule 359, which could be only against the insurer and in favour of person or persons claiming compensation.

34. In the result, we enhance the amount of compensation to Rs. 4,480 from that of Rs. 959-94 P. awarded by the Claims Tribunal. Accordingly we allow the appeal to the extent stated above.

35. Costs of the appeal shall be paid by the 2nd respondent since the first respondent has not contested the appeal.

36. Appeal allowed.