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Amarjit Kaur and ors. Vs. Vanguard Insurance Co. Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtDelhi High Court
Decided On
Case NumberFirst Appeal Nos. 89 and 99D of 1965
Judge
Reported inILR1969Delhi603
ActsMotor Vehicles Act, 1939 - Sections 110
AppellantAmarjit Kaur and ors.
RespondentVanguard Insurance Co. Ltd. and ors.
Advocates: G.S. Vohra and; H.S. Dhir, Advs
Cases ReferredGrand Trunk Railway Company of Canada v. Fennings. There
Excerpt:
motor vehicles act (1939) as amended by amending act of 1956, sections 110 to 110-f - scope of death caused by negligent motor driving--compensation for--determination of.; that sections 110 to 110 f do nto lay down any new principle either for determining the liability for compensation or for assessing the amount of compensation. they do nto say compensation is to be paid for every personal injury or death caused by a motor vehicle. the provisions of chapter viii of the act makes the insurance of motor vehicles against third party risks compulsory, but do nto say that compensation is payable for every accident. it is clear, thereforee that the above mentioned provisions do nto in anyway, over-ride the preexisting principles of the law of torts governing the determination of the.....v.s. deshpande, j. (1) these are cross appeals under section 110-d of the motor vehicles act, 1939 as amended by act 100 of 1956 (hereinafter called 'the act)' against the award of compensation given under section 110-b thereof by the motor accidents claims tribunal, delhi, (hereinafter called 'the tribunal'). appeal no. 89-d of 1965 is by the claimants for enhancing the compensation awarded by the tribunal, while appeal no. 89-d of 1965 is by the respondents for dismissing the claim for compensation altogether or for reduction of the amount of compensation. (2) on 13-6-1963 a motor truck belonging to m/s gopal singh ghanshyam dass in charge of the driver, bakshi ram, ran over and killed one shri ajit singh on old rohtak road, delhi. the truck was insured against third party risks with.....
Judgment:

V.S. Deshpande, J.

(1) These are cross appeals under Section 110-D of the Motor Vehicles Act, 1939 as amended by Act 100 of 1956 (hereinafter called 'the Act)' against the award of compensation given under Section 110-B thereof by the Motor Accidents Claims Tribunal, Delhi, (hereinafter called 'the Tribunal'). Appeal No. 89-D of 1965 is by the claimants for enhancing the compensation awarded by the Tribunal, while Appeal No. 89-D of 1965 is by the respondents for dismissing the claim for compensation altogether or for reduction of the amount of compensation.

(2) On 13-6-1963 a motor truck belonging to M/s Gopal Singh Ghanshyam Dass in charge of the driver, Bakshi Ram, ran over and killed one Shri Ajit Singh on old Rohtak Road, Delhi. The truck was insured against third party risks with M/s Vanguard. Insurance Company Ltd. Smt. Amarjit Kaur widow of the deceased Ajit Singh, and their children applied to the Tribunal under Section 110-D of the Act for award of compensation for the death of Ajit Singh alleging that it was due to the rash and negligent driving of the motor truck. They said that the monthly income of Ajit Singh at the time of his death was Rs. 1,200.00 per month. The application was resisted by the truck owners and the Insurance Company, who denied that the death of Ajit Singh was caused by the negligence of the driver and alleged that the negligence or contributory negligence of Ajit Singh himself was the cause of his death. The tribunal found that the death of Ajit Singh was caused by the negligence of the truck driver. In assessing the amount of compensation, the Tribunal held that the net income of Ajit Singh at the time of his death was Rs. 750.00 per month. Out of this amount, Ajit Singh spent about Rs. 275.00 per month on himself and for his personal expenses. After the death of Shri Ajit Singh his legal representatives derived an income of Rs. 300.00 per month from his business, which has been inherited by the legal representatives. Deducting these amounts from the net income of Ajit Singh the net loss to the dependents by the death of Ajit Singh came to Rs. 175.00 per month. Ajit Singh probably would have lived far another 15 years if he had nto been killed. The total amount of the net loss spread over 15 years would, thereforee, come to Rs. 31,800.00 This amount, which the claimants would have gto during the period of 15 years, if Ajit Singh had lived, was reduced by 10% as the compensation was immediately payable to the claimants. The amount so reduced came to Rs. 28,620.00. Out of this amount Rs. 14,000.00 were deducted as the insurance money paid to the widow of the deceased, Rs. 5,000.00 as the value of the membership and part purchase of the Industrial plto by the deceased and Rs. 1000.00 as the amount received by the widow of the deceased from the Chit Fund on the death of the deceased. Thus, a net compensation of Rs. 8,620.00 only was awarded to the claimants by the Tribunal.The various points for decision arising out of the argument of the learned counsels for both the sides may be dealt with broadly under two headings:-

(1) Was the death of Ajit Singh caused by the negligence of the truck driver or was it caused by the negligence of Ajit Singh himself or at any rate by the contributory negligence of Ajit Singh (2) Is the amount of compensation awarded by the Tribunal liable to be enhanced or reduced (1) The learned Tribunal carefully considered the whole evidence on record and I am in full agreement with its finding that the accident was caused by the negligence of the truck driver and that there was no contributory negligence on the part of Ajit Singh. The facts disclosed in the evidence are as follows:

(3) The truck was going initially by the left side of the road as required by the rule of the road. It was found, however, that a bus was parked on the road in front of it. It has, thereforee, to over take the bus by going to the right side of the road. While the truck was on the right side of the road, it struck the deceased Ajit Singh and killed him on the spot. It was argued for the respondents that the truck was compelled to go to the right side of the road to overtake the stationary bus, that it sounded the horn before doing so and that Ajit Singh was coming on its motor cycle so fast that he could nto stop and, thereforee, collided with the truck. This argument is nto supported by evidence as discussed and appreciated by the Tribunal. Even if, however, this argument is assumed to be based on facts, it is nto a sufficient defense in law. According to the elementary rule of driving, the motor truck going by the left side of the road was nto entitled to go to the right side of the road except after ascertaining that it would nto thereby obstruct the on-coming traffic. The driver is nto entitled merely to sound the horn and to go to the right side of the road without caring whether the on-coming traffic would be blocked by his doing so. There is nothing to show that the truck driver took care to see that there was no on-coming traffic, which would be blocked by his going to the right side. On the respondents' own argument, Ajit Singh was already coming from the opposite side with the result that he collided with the truck when the truck went on the right side. This itself shows that the diversion of the truck to the right immediately blocked the on-coming traffic and that sufficient warning was nto given to the on-coming traffic that the truck was going to he right side, so that the on-coming traffic should slow down. The spto of the accident was clearly on the right side of the road where the truck had no right to be. The right of way on that side of the road was of Ajit Singh even if he was coming fast from the opposite direction and was nto sitting on stationary motor cycle as deposed by the claimants' witnesses. This right way of Ajit Singh could be modified if the truck had given him sufficient warning of going to the right side and given him sufficient time to slow down. There is no such evidence on record. The truck diverted to the right side abruptly giving no opportunity or time for Ajit Singh to slow down and to avoid collision with truck. The accident was thus caused by the unilateral negligence of the motor truck driver. There is no contributory negligence on the part of Ajit Singh. In fact, this sudden diversion of the truck to the right side of the road was so indefensible that Bakshi Ram did nto have the courage to say that he took care to warn the on-coming traffic before diverting the truck to the right side. He, thereforee, tried to escape from facing the situation by saying that he was nto driving the truck at all and that one Madan Lal was driving it. Even Madan Lal has nto been examined to say that he took care to warn the on-coming traffic before diverting the truck to the right side. When neither Bakshi Ram nor Madan Lal has come forward to say that the truck was nto driven rashly and negligently, there is complete absence of evidence on the side of the respondents to show that the truck driver had taken any precaution to warn the on-coming traffic before diverting to the right side of the road. The only reliable evidence was, thereforee, on the side of the claimants. The claimants' evidence is supported by the undoubted fact that the accident took place on the right side of the road where the truck was nto entitled to be, except after warning the on-coming traffic. In the absence of any justification for the diversion of the truck to the right side of the road either pleaded by the respondents or proved by their witnesses, the maxim rest ipsa lgouitur applies and the negligence of the truck driver is estabhshed beyond doubt. I find so.

(2)How is the compensation payable for death caused by negligent motor driving to be determined? There are two possible answers to this question. Firstly, the compensation is to be determined according to the existing principles of law. Secondly, it may be determined by the legislature providing for a different system of compensation such as one based on insurance or on some other policy.

(4) The first answer involves a look at the existing law. Negligence is a well known ground for liability in the law of torts. Whether the damage or death by negligence is caused by the use of a motor vehicle or in some other manner, does nto make any difference to the principle of liability in tort. Prior to the insertion of Section 110 to 110-F in the Motor Vehicle Act 1939 by the amendment of 1956, compensation claims for death caused by negligent use of motor vehicles were pursued by way of suits in Civil Courts. The Courts determined the liability for compensation as also the quantum of compensation according to the well established principles of the law of torts. It is well known that the English Law of torts has been applied by the Indian Courts on the ground that in the absence of any other rule of law, the Courts are to follow the principles of 'justice, equity and good conscience', which have been 'generally interpreted to mean the rules of English Law, if found applicable 13 the Indian Society and circumstances,' (Waghela v. Sheikh) The English Law itself has been constantly developing both by judicial decisions and statutory changes. In India also the common law of England as applied to India has been modified by legislation. The English statutes modifying the law of torts do nto of course apply to India in terms. If, however, they embody any principles of justice, equity and good conscience, such principles would apply to India, in preference to the common law repleaded by legislation as being contrary to such principles. For instance, the doctrine of 'common employment' applied to India so long as it was a part of the common law. It was, however, regarded as an unjust doctrine and was, thereforee, abolished by statutes in England. In Secretary of States v. Rukmini Bai, it was held, thereforee, that the doctrine of common employment was no longer to be followed in India as a rule of justice, equity and good conscience as it had been abolished in England as being contrary to the said principle. Dr.J.D.M. Derrett, while tracing the history of the application of the principle 'justice, equity and good conscience' in India has come to the same conclusion ('Changing Law in Developing Countries (1963) edited by Anderson page 144). In Namdev v. Namadclbai. paragraphs (15) to (18) and (21) to (23), the Supreme Court had occasion to point out that only the basic principles and nto the technical requirements of statutes whether in England or in India could be regarded as the principles of justice, equity and good conscience. The Fatal Accidents Act, 1855 modified the law of torts regarding the payment of compensation for death in India and is, thereforee, to be followed by us first m so far as it applies to our case.

(5) The enactment of Sections 110 to 110-F of the Motor Vehicles Act, in 1956 by the legislature authorised the State Governments to establish Motor Accidents Claims Tribunals for such areas as may be specified in the notifications for the purposes of adjudicating upon the claims for compensation in respect of accidents in- volving the death or bodily injury to persons arising out of the use of Motor Vehicles. Under Section 110-B such a Tribunal has to determine the amount of compensation 'which appears to it to bejust.' Is this a second answer to the question posed by me above as to how compensation for death caused by motor vehicle is to be determined I do nto think so. The reasons are obvious. Firstly, Sections 110 to IIO-F do nto lay down any new principle either for determining the liability for compensation or for assessing the amount of compensation. They do nto say that compensation is to be paid for every personal injury or death caused by a motor vehicle. The provisions of Chapter Viii of the Act makes the insurance of motor vehicles against third party risks compulsory, but do nto say that compensation is payable for every accident. It is clear, thereforee, that the above mentioned provisions do not, in any way, override the pre-existing principles of the law of torts governing the determination of the liability to pay compensation and also the fixation of the amount thereof. This was recognised by I. D. Dua, J., as he then was, in Sri Ram Partap v. Ch. Rati Ram

(6) The same conclusion follows if we consider the object of the introduction of sections 110 to IIO-F in the Act in 1956 and the nature and functions of the Tribunal. Enormous increase in the number of use of motor vehicles in India led to an abnormal increase in the number of accidents and deaths caused by the Motor Vehicles. Suits for compensation involving expenses, particularly in the shape of Court fees and delay due to multiple appeals were found to be inadequate as a remedy to the large number of persons aggrieved by Motor Accidents. The amendment of 1956, thereforee, enable such aggrieved persons to claim compensation merely by making an application to the Tribunal without payment of ad valorem Court fees. Appeal against the decision of the Tribunal was provided directly to the High Court. The legislative intention apparently was to substitute a cheaper and more expeditious forum in place of the ordinary Civil Courts. Beyond this, no change was necessary or was intended. In Municipal Corporation of Delhi v. Kuldiplal Bhandari, by Full Bench of this Court I had occasion, in speaking for the Court, to point out that the nature of the jurisdiction of the Tribunal is precisely the same as that of a Civil Court, inasmuch as it entertains the same claim for compensation based on negligence, as was done by the Civil Court. Even now, in those areas in which Tribunals are nto established by the State Governments, these claims would be still entertained by the ordinary Civil Courts. As the claims before the Civil Courts and the Tribunals are the same and as they are tried by the same law, the decisions of the Tribunal are like the decisions of the Civil Courts, though they may be called an 'award'. Such a claim for compensation is based on a cause of action arising prior to the making of the claim before the Tribunal. The Tribunal determines the legal rights of the parties on the pre-existing legal principles and nto on any consideration of policy. It is nto concerned with recommending or enforcing what ought to be the right and liability of the parties in future. These are the criteria which were applied both by the majority and the minority of the judicial committee of the Privy Council in United Engineering Workers Union v. K. V. Deyanayagam, (being incidentally the first case in which the right of dissent was exercised by the members of the Judicial Committee), to determine if a Tribunal is a judicial one or an arbitral one. On applying these tests there can be no doubt that the Motor Accidents Tribunal is a judicial one. The Tribunal has nto been empowered by Section 110-B of the Act to depart from the established principles of law. In determining the amount of compensation 'which appears to be just' the Tribunal is nto to invent either a new policy or new law. Nto being an arbitral Tribunal or an administrative Officer, the Tribunal is nto an instrument of carrying out any policy of the legislature or of the Government. Being a judicial Tribunal doing the same work as a Civil Court does, the Tribunal cannto but follow the same principles of law as are followed by Civil Courts. For the above reasons, the correct answer to the question as to how the compensation is to be determined in this case would be that it is to be done according to the existing principles of law of torts applicable to India as modified by Indian Legislation.

(7) In Ishwari Devi v. Union of India, a Division Bench of this Court observed in paragraph 39 that Section 110 to 110-F of the Act being a special law enacted in 1956 were self-contained and the provisions of the Fatal Accidents Act, 1855 were nto applicable in terms to an application made under Section 110-A of the Act. The Division Bench, however, did nto say that Sections 110-A to 110-F, of the Act enacted any new principle for the determination either of the liability or of the quantum of compensation and that they were self-contained in these respects. On the contrary, they held on agreement of the learned counsels for both the sides in paragraph 41 that the principles underlying Section 1 of the Fatal Accidents Act, 1855 were applicable to the determination of the compensation for death caused by a motor vehicle. The conclusion of the Division Bench is not, thus, really different from the one reached by me above.

(8) The Rule for fixation of the compensation for death according to the law of torts as pithily expressed in Section A-1 of the Fatal Accidents Act, is that 'in every such action the Court may give such damages as it may think proportionate to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought'. The Supreme Court further explained the rule in Gobald Motor Service Ltd. v. R.M.K. Veluswami, by holding that in calculating the loss caused by the death 'any benefit accruing to a dependent by reason of the relevant death must be taken into consideration .............................. the balance of loss of gain. of a dependent by the death must be ascertained' as was observed by the House of Lords in Devies v. Powel Duffryn Associated Collieries Ltd. (9). In the light of these principles we have to find out the loss caused to the claimants by the death of Ajit Singh and the benefits which accrued to them by the said death, so that compensation to be granted to them should be equivalent to the loss minus the benefit.

(9) Let us first consider what loss was caused to the dependents by the death of Ajit Singh. There is little direct evidence of the income of Ajit Singh after June, 1959 till his death in 1963. The claimants relied upon the evidence of Public Witness 11, Joseph, a Chartered Accountant, who deposed that he had prepared the statements PW11/1 to Public Witness 11-4 from the books of account handed over to him by the deceased. These statements are said to have been based on the original account books. The original account books were neither produced nor proved by the partners of the deceased Ajit Singh though they are said to have written them. The statements were not, thereforee, admissible in evidence. The learned counsel for the claimants urged that the Tribunal was nto bound by the provisions of the Evidence Act, and thereforee, it could and should have relied upon these statements. I am unable to agree with this contention. The Tribunal being bound by the pre-existing rules of law in dealing with an ordinary common law claim is more like a Court of Law and than for instance, Labour Courts and Industrial Tribunal functioning under the Industrial Disputes Act, 1947. But even the latter cannto admit documents such as profits and loss account statements or balance sheets, etc. into evidence unless they are proved like any other document (Petlad Turkey Red Dye Works Co. Ltd. v. Dyes & Chemicals Workers Union, . For the Rule that a document should be properly proved before it can be relied upon is nto always a technical rule of the Evidence Act, but is often a fundamental rule of justice, which cannto be ignored by any judicial Tribunal. We have, thereforee, to rely only upon the uncorroborated evidence of Amarjit Kaur. She said that the deceased Ajit Singh used to give her Rs. 800.00 or 900.00 per month for the family expenses. Making allowance for her tendency to exaggerate this amount the Tribunal held that the income of Ajit Singh was Rs. 750.00 per month. The learned counsel for the claimants urged that this estimate by the Tribunal was on the lower side. I do nto think so. The deceased, Ajit Singh did nto pay income tax. This is a serious handicap in the way of the claimants in urging that his income was much above the taxable minimum. From the mere fact, however, that the deceased Ajit Singh, did nto pay income tax, it would nto be possible to hold that his income was nto above the taxable minimum. For, he sent his children to a good School and had to spend Rs. 100.00 or more for their fees and conveyance charges alone. He also had a motor cycle. The Tribunal was, thereforee, on the whole correct in assessing his income at Rs. 750.00 per month. The loss to the dependents would, however, be that part of the income, which was spent on the dependents by Ajit Singh. Smt. Ajmarjit Kaur has admitted that Ajit Singh spends Rs. 150.00 to 200.00 per month on his personal expenses. The Tribunal was, thereforee, justified in accepting the larger figure of Rs. 200.00 given by her as the personal expenses of Ajit Singh. An amount of Rs. 75.00 per month was taken by the Tribunal as the monthly eating expenses of Ajit Singh which also was reasonable. Deducting these Rs. 275.00 per month from the income of Rs. 750.00 per month, the remainder was Rs. 475.00 per month.

(10) On the death of Ajit Singh, the Motor Workshop, which was run by him, is now run by Pritam Singh and Dalip Singh. The business of a Motor Workshop consists on the one hand of the premises and the equipment and on the other hand, the labour put in by the mechanics. The premises for a workshop need nto be substantial. We see Motor Workshops mostly housed in flimsy structures or even working in the open. The tools for working are also nto a big investment. Once bought they serve for a long time. On the other hand, the labour of the mechanics is costly to obtain. Out of the income earned by a workshop. thereforee, a larger portion would go to the mechanics and only a comparatively small portion will be paid as rent for the use of the premises and equipment. Further, it is nto at all certain that Pritam Singh and Dilip Singh will continue to work in Ajit Singh workshop with his equipment for the next 15 years. On the other hand, they are more likely to work independently for themselves. In the nature of things, it is highly improbable that a widow like Amarjit Kaur or any of her young children can take any part in the management of this workshop. It may be that Pritam Singh and Dalip Singh continue to work in the said workshop for some time immediately after the death of Ajit Singh. There is no certainty at all that they will continue to do so for long and Amarjit Kaur will be able to obtain this monthly income from them or from others for 15 years. This source of income, is thereforee, undependable and insubstantial. The Tribunal was not, thereforee, justified in arbitrarily estimating this income to be Rs. 300.00 per month and that too for the next 15 years. Amarjit Kaur has admitted that the income was Rs. 150.00 to 200.00 per month. In view of the above reasons we cannto go beyond the admission made by her. I, thereforee, estimate the income to her from this source at Rs. 175.00 per month, which is the mean of the two figures stated by her. So, deducting this amount of Rs. 175.00 per month from Rs. 475.00 per month, the actual amount spent by Ajit Singh on his dependents would come to Rs. 300.00 per month and nto Rs. 175.00 per month as held by the Tribunal.

(11) The learned counsel for the claimants urged that Ajit Singh was a forward looking ambitious person. His income was, likely to rise in future. It is true that Ajit Singh had plans to start manufacture of motor parts and he had invested Rs. 5,000.00 for getting an industrial plto for the purpose. He had also invited the late Prime Minister, Nehru, to visit his workshop. The manufacture of motor parts, however, required several other steps to be taken. As pointed out by a learned author (Munkman's Damages for Personal Injuries and Death, 3rd Edition, page 37) :

'ANestimate of prospective loss must be based, in the first instance on a foundation of solid facts; otherwise it is nto an estimate, but a guess. It is, thereforee, important that evidence should be given to the Court as many solid facts as possible. When it is shown that the plaintiff was earning money at a special rate at the time of the injury, an ordinary presumption of the law is that he would have continued to earn at the same rate. If the plaintiff claims that he would have earned more, he must prove relevant facts, for example by showing that he was on a regular ladder of promotion, or in a trade where rates of pay are increased from time to time, or that he had special merits or qualifications or opportunities, which would have led to an improvement.'

INthe absence of reliable evidence of future improved income, thereforee, the only workable basis of Ajit Singh's future income is the income he was making at the time of his death.

(12) Though Ajit Singh evaded to pay income tax in his life time, in estimating his future income provision has to be made for the deduction of the income tax from it, as was held by the majority of the House of Lords in British Transport Commission v. Gourley,. For, as observed by Lord Goddard, the compensation for death is granted nto by way of restitution but only to compensate by monetary payment the loss caused to the dependents as far as this can be done. The amount of tax, which would have been payable by the late Ajit Singh would have to be calculated on his net income and a proportionately reduced part of it would have been deductible from the amount spent by Ajit Singh on his dependents out of his net income. This is somewhat difficult to calculate. On the other hand, it is provable that the deceased might have made savings out of his income if he had lived. In Kassam v. Aerated Water Co. (12) the Privy Council per Lord Guest observed that no reduction should be made on account of acceleration of the estate to the legal representatives of the deceased 'having regard to the anticipated savings which might reasonably have been expected to be made by the deceased if he had lived, as these two figures very largely cancel out'. I, thereforee, think it just in this case that the amount of probable savings, which would have been made by Ajit Singh if he had lived should be set off against the income tax which he would have been liable to pay. On this account, thereforee, no tax deduction is to be made from the amount payable to the dependents by way of compensation.

(13) The average life expectancy in India is about 50 years. This does nto mean that Ajit Singh's life span is to be taken to be 50 years only. The average is low due to infant mortality. But Ajit Singh having survived the infancy period, he might have lived at any rate up to the age of 60 or 65 years. The future earnings of Ajit Singh are to be calculated, however, nto for the average life but for the working life, that is to say for the period for which he would have been active enough to work, (See Quantum of Damages by Kamp & Kamp Vol. 2, 2nd Edn. page 20). Ajit Singh was about 40 years old when he was killed. It is well known that the business of running a Motor Workshop damands hard work. Ajit Singh from his photographs appears to have been a somewhat thinly built man. He was subject to the risks of accidents, etc. in the life that he lived. On the whole the Tribunal has, thereforee, been right in taking the remaining life expectancy of Ajit Singh to be 15 years. It could nto be longer. In the Supreme Court decision cited above, the age of the deceased was only 34 years and the compensation awarded to him worked out a life expectancy of only eight years more. In Buckley v. John Alien and Ford, (13) the life expectancy of the deceased was taken to be for 15 years, though the deceased was only 35 years of age when he died and was very active worker in good health. Relying on this decision the conclusion reached in the latest edition of the well known book 'Winfield on torts' 8th edition, page 620, foto note, 5, is as follows:-

'INthe case of the death of a normal healthy man, the maximum number of years assuming full dependency is likely to be between 12 and 15 years.'

(14) I agree, thereforee that on a true estimate the remaining life expectancy of Ajit Singh would have been 15 years as calculated by the Tribunal.

(15) The dependents of Ajit Singh were his wife and five children aged 17, 12, 9 and 7, the age of the youngest one nto being given in the application. The dependency of the eldest child, who is a daughter, would have been five years more as she would be married off at the age of 22 years or so. The dependency of the second child, who is a son aged 12 years would be 12 years or so. The dependency of the remaining ones would be full 15 years. The widow being burdened with at least three young children, who would nto become independent for the next 15 years after the death of Ajit Singh is nto likely to remarry during the said period. Multiplying the monthly income of Rs. 300.00 per month for 15 years, we get an amount of Rs. 54,000.00. Out of this, we have to deduct l/6th of Rs. 300.00 per month for 10 years as the 1st daughter, Harcharan Kaur would be married off by the end of five years and l/5th of Rs. 300.00 out of the remaining income for a period of three years as the second child would cease to be dependent in 12 years. Making these deductions, the total amount works out at Rs. 45,840.00. This amount would have come to the dependents from month to month if Ajit Singh had survived. Since it is being paid to them immediately in a lump sum, same scaling down has to be made for such acceleration. Even at the rate of 3'% per annum paid by the Savings Banks, an amount of money is likely to be increased by about 50 per cent, if interest is added to it for 15 years. A deduction of about 33/1/8 per cent is, thereforee, to be made from the above amount of the capitalised income. The net loss caused to the dependents by the death of Ajit Singh comes to Rs. 30,560.00.

(16) In paragraphs 45 of the judgment of the Tribunal it has been stated that because of the death of Ajit Singh, Amarjit Kaur received Rs. 14,000.00 from the Insurance Company and the parlies have no objection to this amount being deducted from the amount of compensation. The learned counsel for the claimants before me, however argued that this admission made on behalf of the claimants before the Tribunal can be withdrawn by him if it is proved that it was wrong in law. The established rule enunciated by the House of Lords in Davies v. Powel Duffryn Associated Collieries Ltd., (9) per lord Wright at page 611, is as follows :-

'in assessing the damages, all circumstances which may be legitimately pleaded diminution of the damages must be considered...................... The Actual pecuniary loss of each individual entitled to sue can only be ascertained by balancing on the one hand, the loss to him of the future pecuniary advantage which from whatever source comes to him by reason of the death.'

(17) The Insurance amount which becomes payable to the widow and the children of the deceased by reason of the death is, thereforee, a pecuniary advantage which has to be deducted from the amount of compensation. Jn Nance v. British Colombia Electricity Railway Co. Ltd., page 615, (14) it was pointed out that the benefit which the widow of the deceased gto by reason of latter's death is really the acceleration of her interest in his estate. Both these decisions were cited with approval by the Supreme Court in the decision, referred to above. In considering insurance, however, a distinction has to be borne in mind. Accident insurance by which the insured will stand to receive a certain amount if he is injured in accident stands in one cate- gory. The principle underlying such accident insurance is that the insurer who pays the premiums for the purpose of insuring himself does so on the foto ing that his right to be compensated when the accident insured against happens is an equivalent for the premiums he has paid. It is a quid pro quo, larger if he gets it on the chance that he will never get it at all'. Money received under such an accident insurance policy is not, thereforee, deductible or taken into account in any way in assessing damages for personal injuries as was held in Bradburn v. Great Western Railway Company, . On the other hand, there is the ordinary life insurance life amount of which accrues specifically by reason of death. The real pecuniary benefit which accrues to the heirs of the deceased by reason of the death consists in the accelerated receipt of the amount of the insurance and it is this benefit of acceleration which is deductible from the amount of compensation, as was held in Grand Trunk Railway Company of Canada v. Fennings. There is something in the evidence of Amarjit Kaur to suggest that out of this insurance amount of Rs. 14,000.00 a part was due on the ordinary life policy while the rest was due to the accident benefit clause in the said policy. The claimants have nto cared to produce the policies, which are in their possession. The terms of the policy could be proved only by the production of the original documents by Amarjit Kaur. As she has nto done so, we cannto speculate what the precise terms of the accident benefit clause were, viz. Whether the clause was a pure accident policy, the amount payable on which would nto be deductible from compensation or whether the clause only provided for an enhanced compensation if death was caused by accident in which case the amount would be deductible as it is payable on death. The question whether the accident benefit clause was of the one kind or the other is purely one of fact, which could have been decided only after the production of the original policy. The learned counsel for both the sides before the Tribunal agreed that the whole of the amount of the insurance was deductible. This agreement cannto be said to be merely on a question of law, viz. whether the amount is deductible or not. It is also on a question of fact, viz. that the amount under the terms of the policy was payable by reason of death of Ajit Singh and was, thereforee, deductible. What is a question of pure law is that instead of the whole amount being deductible, only the benefit of acceleration of the payment of it to the widow is alone deductible. To this extent only the admission made by the counsel for the claimants before the Tribunal can be withdrawn. The best way to estimate the benefit of acceleration is to calculate the 'interest on the money during the period of acceleration' as observed by Lord Watson at page 805 of the Grand Trunk Railway Company's case cited above. Such interest at 3'% for a period of 15 years would be about l/3rd of the amount Rs. 4,666.00 only are, thereforee, to be deducted from the compensation amount.

(18) In England at common law, insurance monies like all other benefits resulting from the death of the deceased to his dependents had to be deducted from compensation awarded for death under the law of torts (as modified by the Fatal Accidents Act) as would be clear from the Privy Council decision in Grand Trunk Railway Company's case cited above. Statutory inroads on this principle were, however, made by the Fatal Accident (Damages) Act, 1908 and Fatal Accidents Act. 1959 with the result that in England the insurance monies are now nto taken into account in determining the compensation payable for fatal accidents. These statutes have thus made an exception to the rule enunciated by the House of Lords in 1942 AC 601 and by the Privy Council in 1951 AC 601 which was adopted by the Supreme Court in : [1962]1SCR929 . that all benefits accruing to the dependents of the deceased by reason of his death from whatever source are to be deducted in assessing the compensation for death. The problem before me is to decide whether the common law rule should be followed in this respect or whether the English law as amended by statutes should be followed in preference to the common law. As stated above in India we are to follow the common law or the English law as amended by the statutes only in so far as it embodies the principles of 'justice, equity and good conscience'. The long established rule is that the dependents of the deceased are awarded only the balance of the loss and the benefit suffered by them by reason of the death of the deceased. This rule was apparently based on 'justice, equity and good conscience' and has been followed in India. In : [1962]1SCR929 , the Supreme Court has affirmed it. On the date of the decision of the Supreme Court, statutory changes in England had already engrafted an exception to this rule by excluding the insurance money from the benefits which are to be deducted from the loss caused by the death of the deceased. The Supreme Court, however, did nto indicate in any way that the English law as amended by the statute would be followed in India or that the rule affirmed by them was subject to this statutory exception obtaining in England. The trend of legislation in England is apparently to enhance the compensation payable on death. The legislature is leaning in favor of the dependents of the deceased and against the tortfeasors and the insurance company. In India, however, there is no such legislation. It cannto be said that the statutory changes made in England embody a fundamental rule of justice, equity and good conscience or that the unamended common law was, thereforee, contrary to to 'justice, equity and good conscience'. Unless and until, thereforee, the Supreme Court decides in favor of following English law as amended by the statutes in this respect, I feel bound to follow the unamended common law, which in my view was endorsed by the Supreme Court in : [1962]1SCR929 . The benefit of acceleration of the receipt of the insurance monies has, thereforee, to be deducted as stated above.

(19) The next item which has come to the heirs by reason of the death of Ajit Singh is the interest worth Rs. 5,000.00 in the purchase of the industrial plot. In this case also it is only the benefit of the acceleration of the interest which has to be deducted. The acceleration by deducting the interest for 15 years out of this would be about l/3rd of the amount. Rs.1,666.00 are, thereforee, to be deducted on this account. It is also admitted by Amarjit Kaur that Rs.1,000.00 were paid to her out of the Chit Fund on the death of the deceased. The benefit of acceleration thereon worked out by the same method would be Rs. 333.00 which is the amount to be deducted from the amount of compensation.

(20) The following is the tabulated summary of the amounts of loss and benefit to the heirs of Ajit Singh by his death :-

Loss Benefit 1. Rs. 300.00 p.m. for 15 1. Accelertion of years. 54,000-00 the receipt of insurance money minus periods of reduced Rs. 14,000 .00 being dependency of two 33/1/3% children - Rs.8,160.00 4,666 -00 -45,840-00 2. Acceleration of receipt of investment minus 33/1/3 % for accleration in industrial leration - 15,280 .00 30,560 .00 plot-Rs. 5000.00 being 33/1/3% 1,666 .00 minus benefit Rs-6,665 -00 3. Acceleration of 23,895-00 receipt of Chit Fund-Rs. 1000- 00 being 33/1/3% - 333.00 Total 6,665 .00 Net compensation amount : Rs.23,895.00

(21) Accordingly the award of the Tribunal is modified and a net compensation of Rs.23,895.00 is ordered to be paid by the respondents to the claimants. The liability of the insurance company is limited to Rs.20,000.00 only, which was the maximum for which third party risk was insured against. The claimants' appeal is allowed to this extent, while the respondents' appeal is dismissed. No order as to costs.


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