JUDGMENT
Nazir Ahmad, J.
1. This appeal has been filed by the appellants against the judgment dated 17-7-1976 and the Award dated 5-8-1976 of Shri Bhagwat Narayan Tiwary, District and Sessions Judge-cum-Motor Accident Claims Tribunal (hereinafter referred to as the Tribunal), Palamau at Paltonganj.
2. The facts of the case as found from the judgment which were not disputed may be briefly stated. Shri Jayant Kumar Jain was travelling on 15-10-1971 from Daltonganj to Hazari-bagh by an Ambassador Car bearing No. BRQ 3723 belonging to defendant No. 3 and driven by a driver named Bhattu Mahton. While the car was passing over that part of Daltonganj-Ranchi road which was near Pokhraha at a distance of about 9 miles from Daltonganj, it came in collision at about 5 P. M. against truck No. BRV 6928 belonging to defendant No. 1 and driven by a driver named Prabhu Sahay Hansda, an employee of defendant No. 1. Along with the said driver, there were also in that truck a vehicle supervisor, Sri Surya Kumar Prasad of that defendant and also a khalasi named Ratna Urson. In course of this collision, the right side of the said Ambassador car came in such sudden and severe impact with the hind portion of the above said truck that the car’s right rear door got torn as under and thrown on the road. The late Sri Jayant Kumar Jain who was occupying back seat opposite that door received multiple serious head injuries as a result of which he immediately became unconscious. Both the vehicles jerked apart and stopped at a distance from each other. Thereafter the driver of both the Vehicles helped the injured in a bus which was going towards Daltonganj. The injured was brought to Daltonganj Sadar Hospital at 5.50 P. M. by the driver of the car and he expired there at 6.10 P. M. The deceased was a foreign trained Executive in Rohtas Industries Ltd. in their Forest Division at Patna,
3. The appellants-plaintiffs under these circumstances filed an application in the prescribed form under Section 110A of the Motor Vehicles Act, 1939 (hereinafter referred to as the said Act), claiming Rs. 10,00,000/- as compensation payable to them by defendant Nos. 1 to 4 on account of death of Shri Jayant Kumar Jain. The deceased was aged about 26 years and was husband of plaintiff No. 1 and son of plaintiff No. 2 who is the mother. The application was registered as Title Suit No. 4 of 1972. Defendant No. 1 in the suit is the owner of the truck No. BRV 6928 and defendant No. 2 is the insurer of defendant No. 1. Defendant No. 3 is the owner of Car No. BRQ 3723 and defendant No. 4 is the insurer of defendant No. 3. Defendant No. 3 did not make appearance before the Tribunal.
4. The case of the plaintiffs before the Tribunal was that the accident took place ai about 5 P. M. when the visibility was good and the road where the accident occurred was pitched and wide enough for four vehicles to pass abreast. The amount of traffic there at the time was negligible. The truck driver was speeding reckelssly and from the circumstances surrounding the occurrence it is clear that the truck driver noticed the incoming car from a sufficiently long distance. He did not, however, care to move his vehicle aside in due time to allow safe passage to the car and negligently kept sticking to the middle of the road. When the two vehicles came very close, the truck driver thought that he could not get through the available space without hitting the car. He then suddenly, abruptly, negligently and recklessly steered his truck to his left side and in doing so he dashed the hind portion of his truck against the right side of the car. It is this, coupled with the negligence and recklessness of the car driver in not moving his vehicle – aside in time, that caused the accident and fatal injuries to the deceased.
5. The plaintiffs also claimed that the deceased was a very healthy and brilliant young man having received training in business administration from an American University. He was employed in permanent cadre as an Executive in M/s. Rohtas Industries Ltd. and had a very promising and remunerative career before him. He was only about 26 years of age at the time of his accidental death and taking into account the normal expectation of life which might have extended to 70 years, the plaintiff have been deprived of substantial material benefit of high standard of living for as long a duration of 44 years, which would have been available to them out of the earnings of the deceased. The plaintiffs belong to the highly respectable families both from the side of the parents as well as in-laws. Plaintiff No. 1′ had been married to the deceased only about eight months before his death and due to untimely and premature demise of the deceased on account of the negligence of the driver of the car and the truck in question, she as well as her mother-in-law, plaintiff No. 2, have suffered most tragic bereavement, acute mental shock and agony and have been deprived of the happiness of their lives.
6. The plaintiffs gave before the Tribunal estimated loss of future pecuniary benefits on the basis of the earnings of the deceased from his above employment in two detailed charts which were annexures 2A and 2B to the pro forma application by which an amount of Rs. 13,00,000 was calculated and the plaintiffs claimed a sum of Rs. 20,00,000 as the amount of compensation payable to them.
7. Defendant No. 1, the owner of the truck, pleaded in his written statement that the allegation that the accident took place due to rash and negligent driving by the truck driver in question is not correct and that the accident took place due to rash and negligent driving of the car by its driver. Defendant No. 1 also claimed that it is a society registered under the Bihar and Orissa Co-opera-tive Societies Act, 1935, with paid-up share capital of Rs. 11,150 at the relevant time and the liability, if any, of this defendant cannot exceed this amount and that the estimated loss of future pecuniary benefits to the plaintiffs as shown in Annexures 2A and 2B are imaginary, remote and highly excessive and the truck was comprehensively insured and the liability of the insurer is only to the extent of Rs. 50,000. It was also claimed by defendant No. 1 that plaintiff No. 1 was remarried on 17-6-1973 and on account of her remarriage she has lost her right to claim compensation. It was also asserted that plaintiff No. 2 is not entitled to claim compensation as her husband is alive upon whom she is dependent and although plaintiff No. 2 is the legal heir of the deceased, she being presently maintained by her husband, cannot get any compensation.
8. Defendant No. 2, the insurer of the truck belonging to defendant No. 1, claimed before the Tribunal that the accident took place due to rash and negligent driving of car No. BRQ 3723 and so the driver of the car was charge-sheeted by the police under Section 279 read with Section 304 of the I.P.C. It was also claimed that the deceased while travelling from Daltonganj onwards by the said car was reading newspaper and not giving necessary required instructions to the driver of the car which he had taken out from Patna and that the driver of the car was dead drunk in Bhathi Mahalla of Daltonganj and the plaintiffs were negligent in allowing the deceased to go along with such driver without serviceable attendant with him and that the plaintiffs, even if, found entitled for any compensation, the same would be recovered either from the owner of the car or his insurer, that is, from defendant No. 3 or defendant No. 4. Defendant No. 2 took the other pleas as were taken by defendant No. 1.
9. The case of defendant No. 4, the insurer of the car belonging to defendant No. 3, before the Tribunal was that the truck was on the wrong side and not the car and that the driver of the truck ignoring all the rules of traffic drove negligently and rashly the said truck in the wrong side causing accident by head-on collision and so only the owner of the truck and its insurer are liable to pay damages. Defendant No. 4 also pleaded that the claim of compensation by the plaintiffs is high, exorbitant and excessive. The average span of India life being only 46 years, the plaintiffs cannot calculate on expectation of life of the deceased at 70 years. Defendant No. 4 has pleaded that the deceased was unable to give any pecuniary assistance to the plaintiffs as he being an Executive of a big company must have been finding his salary received after compulsory deductions as insufficient to meet the standard of living he himself was maintaining.
10. The Tribunal framed various issues. While considering issue Nos. 4, 5, the Tribunal for the detailed reason discussed in paragraphs 18 to 31 came to a finding that the accident was solely due to rash and negligent driving by the driver of the truck and he alone is guilty and the driver of the car was not guilty in the matter. While discussing issue No. 6 in paragraph 32 in its judgment, the Tribunal came to a finding that the driver of the car was not negligent and so cannot make its owner liable to pay compensation. It, therefore, held that the truck caused the accident and the insurer of the truck cannot escape legal liability arising out of the death of a third party on account of that accident. While disposing of issues Nos. 7, 8 and 9. the Tribunal came to a finding that it is established beyond doubt that Shri Ja-yant Kumar Jam was killed on account of injury received by him in course of the accident concerned. On the basis of the evidence the Tribunal, therefore, held that the deceased was a promising young man with a bright future and such a career of his was cut short by the tragic death caused by the accident. The Tribunal also came to a finding that the deceased, if alive, would have made good earnings up to the age of 58 or 60 years and he might have drawn gratuity and pension etc. for the rest of his retired life which would have been ten years more.
11. The Tribunal, relying on various rulings and keeping in view the principles enunciated in those ruling and on the basis of the evidence, held that the family enjoys a fairly good standard of living but it was difficult to ascertain what are the properties of the joint family which appears to be affluent and what amount used to be spent over the maintenance of plaintiff No. 1 by his family.
12. The Tribunal also found that the wife of the deceased was remarried on 17-6-1973 with the younger brother of the deceased. The Tribunal held that after remarriage, plaintiff No. 1 is not as helpless as after the accident and so plaintiff No. 1 is entitled to full maintenance amount for about 2 years and then something more also as the unfortunate accident made her marry a young man who is not as well settled as her deceased husband. The Tribunal held that had the plaintiff and her deceased husband been only members of a family, it was expected that they would have shared equally the salary earned which cannot exceed Rupees 15,000/- at any rate. As to the extent the accident has marred future prospect of high standard of living in the company of the deceased, it awarded a further amount of Rs. 15,000/- and so it awarded a lump sum compensation of Rupees 30,000/- to plaintiff No. 1.
13. As regards plaintiff No. 2, the Tribunal held that she is the wife of a person who is employed and is expected to remain in employment at least for four years more as he is presently aged 54. The husband, on retirement, may be entitled to pension, gratuity etc. besides the savings already made. It, therefore, held that plaintiff No. 2 will not be put to any trouble in the matter of her proper maintenance and she has got other son also and he may look after her. The Tribunal held that it is normal expectation of parents that their worthy son would be looking after their comforts in their old age and thus an important pillar for her old age has been demolished. The Tribunal held that plaintiff No. 2 was aged 50 years and was expected to live at least for 15 years more, and so it awarded compensation of Rs. 15,000/- to plaintiff No. 2. It also awarded interest in view of Section 110-CC of the said Act at the rate of 6% per annum with effect from the date of filing of claim petition, i.e. from 11-4-1972. The Tribunal also held that the truck of defendant No. 1 was insured by defendant No. 2. It, therefore, directed that the entire amount payable to the plaintiffs are to be recovered from the insurer, that is, defendant No. 2. The Tribunal also found that in accordance with Section 95 (2) (a) of the said Act and also under the terms of the Insurance Policy, the limit of the liability of defendant No. 2 is only up to Rs. 50,000/-. it, therefore directed that defendant No. 2. the insurer, shall pay to the plaintiffs to the limit of Rupees 50,000/- only and the balance amount, if any, can be recovered directly from defendant No. 1. The Tribunal, therefore, decreed the suit on contest in part against defendants Nos. 1 and 2 and dismissed the suit without cost against defendant No. 3 and on contest against defendant No. 4 but without cost and decree was accordingly prepared which is awarded in the present case.
14. Being aggrieved by the judgment and award of the Tribunal, the plaintiffs-appellants have filed the present Miscellaneous Appeal and have pleaded that the Tribunal has erred in law in giving the award only against defendant No. 1 and its insurer, defendant No. 2, for a meagre sum of Rupees 45,000/- out of the total claim of Rs. 12,99,862/-.
15. Respondents 1, 2 and 4 who were defendants 1, 2 and 4 have contested the appeal. Repondent No. 3 who was defendant No. 3 has not contested. Respondent No. 1 has filed a cross-objection to the effect that the driver of the truck was not responsible for the accident and that it was the driver of the car who was responsible for the accident. It has also been pleaded that appellant No. 1 has been remarried and so she is not entitled to any compensation and ap-pellant No. 2 is also not entitled to any compensation.
16. Respondent No. 2, who is insurer of respondent No. 1 has supported the case of respondent No. 1 Respondent No. 4 is the insurer of respondent No. 3 and the case of respondent No. 4 is that the accident took place due to the negligence of the truck driver.
17. When the appeal was taken up for hearing the learned counsel for the appellants submitted that he was only pressing the quantum of compensation. On the other hand, learned counsel for respondents Nos. 1 and 2 have submitted that the accident took place solely due to rash and negligent driving by the driver of the car and he is alone guilty in the matter. Learned counsel for respondent No. 1 drew the attention to the statements of D.Ws. 1 and 2. D.W. 1 is the driver of the truck who was driving the truck at the time of occurrence. D.W. 2 was a chance witness present at the time of occurrence. On the basis of the evidence of these two D.Ws., learned counsel for respondent No. 1 has submitted that the accident took place due to rash and negligent act of the driver of the car. However, I find that the Tribunal, while discussing issue Nos. 4 and 5 has discussed the entire evidence including the evidence of D.Ws. 1 and 2 and for the detailed reasons mentioned in paras 18 to 31, has come to a conclusion that the accident was solely due to the rash and negligent driving of the truck by the driver and he alone is guilty in the matter. It also held that the driver of the car was not negligent. I find that the Tribunal has given cogent reasons for coming to the finding that the accident was solely due to the rash and negligent driving by the driver of the truck and I do not find materials to differ from the findings of the Tribunal. I, therefore, agree with the finding of the Tribunal that the accident was solely due to rash and negligent driving by the driver of the truck and the accident did not take place on account of any fault of the driver of the car.
18. Now I have to consider as to whether the compensation awarded to the appellants by the Tribunal was just and proper. According to Section 110B of the said Act, the Tribunal has to determine the amount of compensation which appears to be just and that the Tribunal has also to specify the person or persons to whom the compensation has to be paid and also to specify the amount which shall be paid by the in-surer or the owner of the vehicles involved in the accident or by all of them. as the case may be. Learned counsel for respondent No. 1 has submitted that admittedly appellant No. 1 was remarried. Appellant No. 1 was married with the deceased on 16-2-1971 only eight months before the accident. This will be evident from the finding of the Tribunal in para 38 of the judgment at page 47 of the brief. It has also been held that appellant No. 1 was remarried on 17-6-1973 with the younger brother of the deceased who is neither in service nor he is self-employed in any business. The Tribunal has come to a finding that the family appears to be belonging to business community. On the basis of these findings it cannot be doubted that the death of the deceased took place on 15-10-1971 and appellant No. 1 was remarried within less than two years after the death of the deceased. Learned counsel for respondent No. 1 has submitted that appellant No. 1 will be entitled to compensation only for the period when she was widow. For this purpose, learned counsel for respondent No. 1 has relied on the case of Manjula Devi Bhuta v. Manjusri Raha (1968 Acc CJ 1). In this case, it was held that compensation can be determined arithmati-cally with a high degree of accuracy only where the Tribunal knows, with certainty all the relevant factors, for instance, where the widow remarries within a short time of the deceased husband’s death and in such a case her loss during the period of widowhood can be assessed accurately by simple arithmatic. The claim in this case related to the claim under Section 110A of the said Act and this is a decision of the Madhya Pradesh High Court. The High Court in this case while making the aforesaid observation, which is an obiter, placed reliance on the case of Mead v. Clarke Chapman and Co. Ltd., (1956) 1 All ER 44. Mead’s case related to the award of damages under the Fatal Accidents Act to the infant child of the deceased and the only question was whether the dependency of the child ceased wholly on remarriage of the widow. Of course, there is an observation at page 45 that the widow of the deceased was awarded compensation during the period of her widowhood as the deceased husband of the widow was earning same amounts as the second husband and so there was no financial loss to the widow. However, the question of damages to the widow was not directly before the Court of Appeal. Under such circumstances this ruling will not be helpful for holding that the widow will not be entitled to any compensation after remarriage.
19. On the other hand, learned counsel for the appellants has placed reliance on the case of R. B. Moondra & Co. v. Mostt. Bhanwari (AIR 1970 Raj 111)., In this ruling, it has been held that in the Workmen’s Compensation Act, there is no such provision that after re-marriage the widow of the deceased would not be regarded as dependant. It has also been pointed out that under Section 21 of the Hindu Adoptions and Maintenance Act, 1956, a widow remains dependant, within the meaning of that section so long as she is not re-married, but the definition of the “dependant” under the Act is not so restricted and the fact that she has re-married will not disentitle her to claim compensation under the Act. I find from the Workmen’s Compensation Act, 1923, that in Section 2 (1) (d) “dependant” means a widow of the deceased workman. Thus under this Act there may be conflicting view whether a widow after re-marriage can be said to be dependant of the deceased or not. However, under Section 110A of the said Act an application for compensation arising from an accident may be made by all or any of the legal representatives of the deceased. Thus under Section 110A of the said Act a legal representative of the deceased is entitled to the compensation and it has not been asserted at the time of arguments on behalf of respondent No. 1 that the widow ceased to be legal representative of the deceased after re-marriage. Under such circumstance, I hold that plaintiff No. 1 even after re-marriage is entitled to the compensation on account of the death of her deceased husband.
20. Learned counsel for respondent No. 1 has submitted that the compensation awarded to appellant No. 2, the mother of the deceased, is excessive and so it should be suitably reduced. The mother of the deceased has been examined on commission as P. W. 13. She was aged about 50 years on 2-9-1974. The accident took place on 15-10-1871. This goes to show that at the time of accident she was aged about 47 years. Learned counsel for respondent No. 1 has submitted that the normal expectancy of the life of appellant No. 2 should be taken at 60 years and so the compensation should be accordingly calculated for appellant No. 2. For this purpose he has relied on a number of cases which I am dealing one by one. In Jupiter General Insurance Co. Ltd. v. Kamala Devi (1975 Ace CJ 131) (Orissa) it was held that the deceased, out of total earning of Rs. 1,000 was spending Rs. 666/- per month over his dependants and he, at the time of his death, was only of 44 years. The normal expectancy of his life was taken to be 60 years and so it was held that the deceased would have earned at the rate of Rupees 1,000/- per month for another sixteen years and so the pecuniary loss calculated at Rs. 666 x 12 x 16 which came to Rs. 1,27,872/-, It was also found that the deceased was running a business and this business after his death had been inherited by his widow and his children. Taking into consideration the uncertainties of life, the fact that the claimants have inherited the business left by the deceased and the fact that the claimant’s would get a lump-sum, a compensation of Rs. 50,000/- was fixed by the Orissa High Court in that case.
21. In Subash Chander v. State of Haryana (1975 Acc CJ 164), in paragraph 20 at page 175 : (AIR 1974 Punj & Har 54 at pp. 61-62), the mother of the deceased was the claimant and it was found that the deceased had earned only a sum of Rs. 1,000 in liquor business during the year 1966-67. It was also found that there was no evidence of any dependency of the mother on the deceased or the amount that he was making available to his mother and in such circumstances a compensation of Rs. 5,000 was awarded to the mother. In State of Punjab v. Brij Mohan Singh (1975 Acc CJ 372) (Punj), the deceased was drawing salary of Rs. 200 per month as his pay and the claimants were the widow and three minor children. The Tribunal awarded a sum of Rs. 26,000 which was reduced to Rupees 20,400. In this case it was found that the ordinary expectancy of life is 70 years and Prakash Chand was about 40 years at the time of the accident. In this case the age of the deceased, the age of Mrs. Kaushalya Devi, the widow and the age of the children were taken into consideration and then compensation was awarded. However, from all these cases it is evident that the calculation was on the basis of the income of the deceased.
22. In the United India Fire & General Insurance Company Ltd. v. S. Sara-swathi Eai (1978 Acc CJ 43) (Andh Pra), the deceased was aged about 19 years and was brilliant student of senior Intermediate College. The claimant was the mother. In this case it was held that graduates who take up service in a bank or some such company even during their probation period do not get less than Rs. 500 per month. On this basis it was held that the contribution of the deceased towards family would have been Rs. 250 per month. It was also found in this case that the claimant mother was aged 40 years and the father of the deceased was also of the same age and so it was presumed that the appellants in the normal course would survive for 20 to 25 years. The court, however, multiplied 12 years purchase factor to the net contribution of Rs. 150 per month on account of lump sum payment and thus arrived at a figure of Rs. 21,600 and also awarded Rs. 3,000 for pain and suffering and thus total claim came to Rs. 24,600. The Tribunal had awarded Rs. 20,000 which was held to be reasonable.
23. In Lahari Ram v. Mahendra Singh (1978 Ace CJ 282) (Orissa), the deceased died at the age of 24 years and he was getting Rs. 350 per month at the time of death. It was held in that case that the contribution to the parents of the deceased should be taken at Rupees 200 per month and the contribution a year came to Rs. 2,400. In that case the claimants namely father and mother were held to be 48 and 41 years respectively. On the basis of the age of the father and mother of the deceased it was held that they were entitled to compensation for 16 years after some deductions for uncertainty of life. The claim on this calculation came to Rupees 38,400 which was reduced by 1/6th and compensation of Rs. 32,000 was awarded. Thus in this ruling the age of the claimants was taken into consideration.
24. Learned counsel for respondent No. 1 has submitted that the husband of the mother of the deceased is alive and he has other properties. The Tribunal has held in paragraph 40 of its judgment that the husband of the plaintiff No. 2 is employed and is expected to remain in employment for at least 4 years more and he will be entitled to pension, gratuity etc. besides savings. On this basis, learned counsel for respondent No. 1 submitted that this circumstance has to be considered in awarding compensation to the mother. For this purpose, he has relied on the cases discussed hereinafter. In State of Punjab v. Most. Parsini (AIR 1977 SC 2033) it was held that the deceased was having income of Rs. 200. In this case the High Court allowed a sum of Rupees 60, as the amount that must have been spent by the deceased on himself with the result that the income of the family was Rs. 140 per month and a compensation of Rs. 25,200 was allowed which was upheld by the Supreme Court. In this ruling the method of calculation has not been pointed out. In this case the High Court awarded Rupees 3,000 to each of the seven children of the deceased and Rs. 4,200 to the widow and that was upheld by the Supreme Court. This ruling will not be helpful for the purpose of calculation but it could not be doubted that when the income of the family was calculated at Rs. 140 per month, the compensation calculated was Rs. 25,200.
25. In Badri Narain Prasad v. Anil Kumar Gupta (1979 BBCJ (HC 273) : (AIR 1979 Pat 204), it was held that the expected age of the victim is to be ascertained and that amount he has been earning minus deduction towards chance is a correct guide. In this case it was held that the deceased was aged 19 years at the time of his death on account of accident. The claimant was aged 47 years on the date of the accident. It was also held that the deceased was earning from tuition about Rs. 200 per month. It was held that the life of expectancy of the deceased should be taken to be 40 years since he would have normal expectancy of life up to 60 years. As regards life of expectancy of the claimant, it was taken to be 13 years as he was aged about 47 years. The savings to the family was calculated at Rs. 100 per month which came to Rs. 1,200 per annum and it was calculated for 13 years out of which there was deduction of 10 per cent towards chances and so the compensation was calculated to Rupees 13,040/-. The claimant was the father of the deceased. On this basis, learned counsel for respondent No. 1 has submitted thai for the mother the calculation should be for the period for which she should be expected to be alive.
26. In Indian Mutual General Insurance Society Ltd., Madras v. M. Ko-thandian Naidu (1966 Ace CJ 62) : (AIR 1967 Mad 54), the deceased aged 18 years was run over by a lorry and killed. He used to assist his father actively in his lorry business which was alleged to yield an average income of Rs. 500/- per mensem. The claimant was himself aged 52 years. The deceased was his fourth son but there was no evidence that any other son could have immediately taken over the conduct ot the lorry business and run the business in an equally satisfactory manner. It was under these circumstances that it was held by the Madras High Court that the claimant being 52 years was likely to receive the benefit of the services of his son for a period of about 18 years, i.e., till his 70th year. It was also held that as lump sum was to be awarded, the award could not be worked out on the basis of arithmetical calculation for 18 years. In that case it was held that Rs. 125/- per month would be reasonable value of the services rendered and ten years period would be reasonable for the purpose of computing compensation and so a sum of Rs. 15,000/- was awarded as damages.
27. In view of these aforesaid rulings, learned counsel for respondent No. 1 has submitted that the compensation to be paid to the mother should be calcu-lated only for 13 years as her expectancy of life should be taken to be 60 years.
28. Learned counsel for the appellants has relied on various rulings to support his case. He has relied on the case of Madhya Pradesh State Road Transport Corporation, Bairagarh, Bho-pal v. Sudhakar (AIR 1977 SC 1189). In this case there was death of an earning wife in an accident. The claimant-husband was not dependent on wife’s income. The claimant-husband was remarried within 11 months and in this circumstance, the Supreme Court held that a method of assessing damages, usually followed in England is to calcu-late the net pecuniary loss upon an annual basis and to “arrive at the total award by multiplying the figure assess-ed as the amount of the annual ‘dependency’ by a number of “years purchase”, that is, the number of years the benefit was expected to last, taking into consideration the imponderable factors in fixing either the multiplier or multiplicand It was also held that the husband may not be dependent on the wife’s income, but the basis of assessing the damages payable to the husband for the death of his wife would be similar. In this case it was also held that in assessing damages certain other factors have also to be taken note of, such as the uncertainties of life and the fact of accelerated payment that the husband would be getting a lump sum payment which but for his wife’s death would have been available to him in driblets over a number of years, and that allowance must be made for the uncertainties and the total figure scaled down accordingly. It was held that the deceased might not have been able to earn till the age of retirement for some reason or other, like illness or for having to spend more time to took after the family which was expected to grow. Thus the amount assessed has to be reduced taking into account these imponderable factors. Their Lordships have pointed out that the deceased had 35 years of service before her when she died. The claimant’s loss reasonably worked out to Rs. 50/- a month i. e., Rs. 600/- a year. Their Lordships held keeping in mind all the relevant facts and contingencies and taking 20 as all the suitable multiplier, the figure would come to Rs. 12,000/- and so the Tribunal’s award granting Rs 15,000/- was sustained.
29. In Smt. Manjushri Raha v. B. L. Gupta, AIR 1977 SC 1158 the deceased, a temporary employee was drawing a salary of Rs. 620/- per month at the time of death in the grade of Rs. 590-30-830-35-900. The Claims Tribunal decreed only a claim of Rs. 60,000/- after calculating the total salary which the deceased would have got up to 55 years which was the age of superannuation and after deducting half the amount which would normally have been spent and lost to the family. Their Lordships in this case held that the Tribunal and the High Court were wrong in not taking into account the salary of the deceased which he would have reached while reaching the maximum of the grade lone before his retirement. Their Lordships also held that the deceased was 37 years of age at the time of his death and would have reached his maximum pay of Rs. 900/-. 9 years before his superannuation. It was pointed out that the justificate from the Accountant General’s office showed that the deceased would have drawn Rs. 1,88,000/- including the increments and the maximum grade drawn. It was held that even if half of this be deducted as being rightly taken to have been spent by the deceased to cover day to day domestic expenses, payment of Income-tax and other charges, the actual income lost to the family including the value of the estate, and the loss of the dependants would be Rs. 94,000/- but Rs. 90,000/- was held to represent the correct compensation so far as the salary part of the deceased was concerned. Their Lordships also allowed Rs. 13,500/- on accound of death-cum-retirement gratuity while holding that pension would have been spent for the purpose of expenses.
30. In Gobald Motor Service Ltd. v. R. N. K. Veluswami, AIR 1962 SC 1, the Supreme Court has held that in calculating the pecunary loss to the dependants many imponderables enter into the calculation, and therefore, the actual extent of pecuniary loss to the dependants may depend upon data which cannot be asscertained accurately, but must necessarily be an estimate, or even partly a conjecture. Their Lordships held that the general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefits and on any other pecuniary advantage which from whatever source comes to them by reason of death, that is, the balance of loss and gain to a dependant by the death must be ascertained. The burden is certainly on the plaintiffs to establish the extent of their loss.
31. In Sheikbupura Transport Co.
Ltd. v. Northern India Transporters
Insurance Co. Ltd. (AIR 1971
SC 1624), also, their Lordships held
that in fixing the compensation, the
pecuniary loss can be ascertained only
balancing on the one hand the loss to
the claimants of the future benefit and
on the other any pecuniary advantage
which from whatever source comes t.o
them by reason of the death. From this
ruling it is evident that Bachan Singh
and Narinder Nath, the deceased were
42 and 43 years respectively at the time
of their death. It has been pointed out
by their Lordships that both the
Tribunal and the High Court came to
the conclusion that Bachan Singh had
an annual income of Rs. 9,000/- and out
of Rs. 9,000/- Rs. 2,000/- was his income
from his immoveable property;
that income continued to accrue
to the benefit of his wife and
children: therefore, only the income
other than the income from immovable property which Bachan Singh was earning from his contract was taken into consideration. The High Court came to the conclusion that Bachan Singh must have been spending at least Rs. 200/- on his family every month and that Bachan Singh had to marry two daughters, and, therefore, whatever he might have been able to save, after meeting the family expenses and his own. the same would have been utilised for the marriage expenses of the daughters. Both the Tribunal and the High Court computed the loss to the family of Bachan Singh by capitalising the benefit that the family was getting from him during that lifetime. The High Court held that Bachan Singh would have spent Rs. 200/-on his family. In the case of Narendra Singh, it was held that he was spending Rs. 200/- per month on his family and so the High Court computed the total compensation at Rs. 36,000/- on the basis of 15 years’ purchase of the benefits that were accruing to the family as in the case of Bachan Singh. Under such circumstances, it was held that the compensation awarded by the High Court was reasonable.
32. Now in view of the aforesaid rulings. I have to consider as what compensation can be awarded to the appellants. P. W. 3 is the Senior Forest Superintedent of the Rohtas Industries. He has stated that the deceased, Jayant Kumar Jain, was drawing a salary of Rs. 1500/- per month and if he had got promotion, he would have got a salary of Rs. 3500/- per month. Exhibit-2 is the official communication dated May 19, 1971, from the Vice-President (Administration) of the Rohtas Industries Ltd. Calcutta. This shows that the services of Shri Jayant Kumar Jain were taken over by the Rohtas Industries, Ltd. from Sahujain Services Ltd. with effect from 27 September, 1970 and posted to Patna Office. This also shows that he will draw a salary of Rs. 1,500 in the grade of Rs. 1000-75-1300-100-1600 per month. A copy of exhibit 2 is at page 150 of the brief where the scale of pay has been wrongly typed as Rs. l’000-75-1800-100-1800 per month.
33. Learned counsel for the appellants has relied on annexures ‘2A’ & ‘2B’ where a calculation relating to the claim of Rs. 13,00,000 was made. It shows various scales from Rs. 1,000 to 1,600, Rs. 1,500 to 2,000, Rs. 2,000 to 2,500 and Rs. 2,500 to 3,000 and ultimately a maximum of salary of Rs. 4,700 has been shown which the deceased could have drawn. Thus the scale of pay has been shown for a period of 34 years after his death and then after that for ten years’ income has been calculated on the basis of pension. I have already referred to the decision of the Supreme Court in AIR 1977 SC 1158. In this case the scale of pay was considered at the time of death of the deceased and on that basis a calculation was made, Moreover, in that ruling, there was a certificate from the Accountant General’s Office showing that the deceased would have drawn Rs. 1,88,000 including the increments and the maximum grade drawn. In the present case, annexures-‘2A’ & ‘2B’ have been prepared by the learned counsel for the appellants and so this cannot be a basis for calculating the compensation. The only material before me is exhibit-2 which shows that at the time of death maximum scale which the deceased could have drawn was Rs. 1,600/- per month. Under such circumstances, a calculation has to be made considering the maximum which the deceased could have drawn per month at Rs. 1,600/-. P. W. 3 has admitted that although he was drawing a salary of Rs. 1450/- per month in Aug., 1974, when he deposed but he was not able to save anything from the salary. Under such circumstances, I calculate the salary at the rate of Rs. 1,600/- per month. The Tribunal has come to a finding that the deceased, Shri Jayant Kumar Jain, was aged about 26 years at the time of his death. The Tribunal has come to a finding in para 36 of its judgment that the deceased if alive. would have made good earning up to the age of 58 or 60 years and he then, might have drawn gratuity and pension etc. for the rest of his retired life which would have been ten years more. Under such circumstances, the total salary which should have been drawn by the deceased up to the age of 60 years would be Rs. 1600 x 12 x 34 which comes to Rs. 6,52,800/-.
34. It is evident from the cases at page 677 of the ‘Motor Vehicles Act’ by W. W. Chitaley and Bakhale published by the All India Reporter Limited in the 2nd Ed., 1979, that deduction from the amount determined as much as up to 15 per cent on account of uncertainty of life may be permissible. If 15 per cent is deducted from Rs. 6,52,800/-, then balance will come to Rs. 5,54,880.
35. From the decision in AIR 1977 SC 1158, it is evident that 50 per cent has to be deducted for the amount which would have been spent by the deceased to cover day-to-day domestic expenses, payment of income taxes and other charges and so the actual income lost to the family including value of the estate and the loss of the dependents would be 50 per cent of the total amount. If I deduct 50 per cent from Rs. 5,54,880 then the amount available to the family will be Rs. 2,77,440.
36. From the cases in the aforesaid book entitled ‘Motor Vehicles Act’, it is evident at Page 661 that deduction of 25 per cent is allowable from the total compensation for lump sum payment. If 25 per cent is reduced from Rupees 2,77,440, then the balance compensation payable to the appellants will be Rupees 2,08,080. If some allowance is made for the uncertainty of lives of the appellants, then the appellants should be entitled to a total compensation of Rupees 2,00,000. In AIR 1977 SC 1158, when the deceased was in the grade of Rs. 590-30-830-35-900, a total compensation of Rs. 90,000 plus 13,500 was allowed. Under such circumstances, when the deceased, in the present case, was in the scale of Rs. 1,000-75-1300-100-1600 the compensation of Rs. 2,00,000 appears to be a just compensation. I hold that pension amount would have been spent in day-to-day expenses and no evidence about gratuity amount was placed before us.
37. Now the question is, as to what amount of compensation should be allowed to each of the appellants. Appellant No. 1 is the widow of Shri Jayant Kumar Jain, the deceased, and appellant No. 2 is mother of the deceased. Appellant No. 1 was aged 22 years and appellant No. 2 was aged 47 years at the time of death of the deceased. I have already held in paras 18 and 19 that widow even after remarriage will be entitled to compensation as legal representative of the deceased. I have also pointed out in paragraph 18 that the widow has been remarried with the younger brother of the deceased who is neither in service nor self-employed in business. Hence her remarriage is of no consequence. Under such circumstances, the compensation has to be calculated keeping this circumstance into view. Considering the probabilities of their lives, the widow of the deceased should get 2/3rd of the compensation and the mother of the deceased should get 1/3rd of the compensation. Under such cir- cumstances, I hold that appellant No. 1, the widow of the deceased, will get compensation of Rs. 1,33,330 and appellant No. 2, the mother of the deceased, will get compensation of Rs. 66,670.
38. Now the question is as to from which of the respondents Nos. 1 and 2 what amount can be recovered. In paragraph 42 of the judgment, the Tribunal has come to a finding that in accordance with Section 95 (2) (a) of the said Act and also under the terms of the Insurance Policy, limit of the liability of respondent No. 2–defendant No. 2 is only up to Rs. 50,000 and so defendant No. 2, the insurer, is liable only to the limit of Rs. 50,000 and the balance has to be recovered from defendant No. 1.
39. Learned counsel for the appellant has relied on the case of New Asiatic Insurance Co. Ltd. v. Pessumal Dhanumal Aswani (AIR 1964 SC 1736) where it has been held that the contract between the insured and the company may not provide for all the liabilities which the company has to undertake vis-a-vis the third parties, in view of the provisions of the Act and once the company had undertaken liability to third parties incurred by the persons specified in the policy, the third parties’ right to recover any amount under or by virtue of the provisions of the Act is not affected by any condition in the policy and considering this aspect of the terms of the policy, it is reasonable to conclude that proviso (a) of para 3 of Section II of the Policy is a mere condition affecting the rights of the insured and the persons to whom the cover of policy was extended by the company, and does not come in the way of third parties claim against the company. In that case Para 1 of Section II of the Policy indemnified the insured i.e. Ansari who effected the policy, in the event of accident caused by or arising out of the use of the motor car, against all sums which he may become legally liable to pay in respect of death and bodily injury to any person. The observation was made as certain other conditions wera mentioned in the policy.
40. Learned counsel for the appellants has also relied on the case of British India General Insurance Co. Ltd. v. Captain Itbar Singh (AIR 1959 SC 1331) where it has been laid down that the insurer, if party to the litigation, can take only the defences as are available in Section 96 (2) of the said Act.
41. Section 95 (2) (a) of the said Act lays down that a policy of insurance shall cover any liability incurred in respect of any one accident, where the vehicle is a goods vehicle, up to the limit of fifty thousand rupees in all. Section 96 (1) of the said Act lays down that the insurer shall pay to the person entitled to the benefit of the decree any sura not exceeding the sum assured payable under the policy as if he were the judgment-debtor, in respect of the liability together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments. In a recent decision in the case of Motor Owners’ Insurance Co, Ltd. v. Jadavji Keshavji Modi (AIR 1981 SC 2059), it has been held by the Supreme Court that the liability of the insurer is to the extent mentioned in Section 95 (2) (a) of the said Act. It is evident from the cases at page 611 of the aforesaid book entitled ‘Motor Vehicles Act’ that where under the terms of the policy of Insurance, the insurer has agreed to pay compensation *o third parties and covered the risk beyond the limit prescribed in Section 95 (2) (b), award can bo made directing the insurer to pay higher amount and that, there is nothing in the provision of law to prevent the parties from contracting for insurance to cover an amount larger than provided in Section 95 of the said Act, Under such circumstances, I hold that respondent No. 2 will be liable to pay only Rs. 50,000 and the balance amount will be recovered from respondent No. 1 with interest and cost as ordered by the Tribunal.
42. In view of my findings above, the appeal is allowed against respondents Nos. 1 and 2 on contest in part on the lines indicated above and it is dismissed ex parte against respondent No, 3 and on contest against respondent No. 4, However, the parties will bear their own costs of this court.
S. Roy, J.
43. I agree with the order proposed. I am, however, making some observation on one point,
44. The question that has arisen in this case is whether in view of the fact that appellant No. 1 remarried during the pendency of the application before
the Tribunal, she will be entitled to
compensation only for the period she
was a widow. In my opinion merely be
cause a widow remarried, she will not _
forfeit her claim for compensation if it
is shown that by remarriage her loss
has not been compensated. In this case (
it is in evidence that the second hus
band of appellant No. 1 has no indepen
dent source of income, whereas her pre
vious husband was in service in the
grade of Rs. 1000-75-1300-100-1600 per
month. In view of the same, it must be
held that appellant No. 1 is entitled for
compensation for the death of Jayant
Kumar Jain, her first husband.