P.N. Khanna, J.
(1) The appellants are the widow and two sons of Manohar Lal Khurana who died as a result of an accident, which took place at about 11.45 pm. on September 7, 1963. The deceased was traveling at that time as a pillion passenger on a motor cycle owned by respondent No. 6, driven by respondent No 4 and insured with respondent No. 5. The motor cycle was knocked down by a car driven by Rudar Singh, respondent No. 1, owned by respondent No. 2 and insured with respondent No. 3. The deceased was thrown on the road due to the impact and received grievous injuries, as a result of which he died 32 hours thereafter in the Safdarjang Hospital. Appellant No. 1, the widow, and appellants Nos. 2 and 3, the sons of the deceased, then filed application under section 110-A of the Motor Vehicles Act, for the award of Rs. 25.000.00 as compensation, on the allegation that the accident was due to the rash and negligent driving on the part of the car driver, respondent No. 1, who was driving the same in the course of his employment under respondent No. 2. The amount was claimed in the alternative from the motor cycle driver, the insurance company, and the owner of the motor cycle, respondents Nos. 4, 5 and 6, respectively, in case it was found that the accident was due to the negligence of respondent No. 4.
(2) The application was contested by the respondents. Respondents Nos. 1 to 3 pleaded that there was no negligence on the part of the driver of car, which according to them, was proceeding at a speed of about 15 miles per hour on the correct side of the Link Road from the India Gate side, to defense Colony (North to South), with Baldev Raj Nagrath, sitting in it According to them, the motor cycle was coming from the southern side at a terrific speed driven rashly and negligently by respondent No. 4, when it struck against the car on reaching the T-intersection where the road coming from Jangpura side meets the Link Road. Respondent No 4 pleaded that there was no negligence on his part. According to respondent No. 6, the motor cycle was not being driven at that time during the course of respondent No4's employment with them They, thereforee, denied vicarious liability for the appellants' claim. Respondent No, 5, the insurance company, likewise repudiated the claim,
(3) The Motor Accident Claims Tribunal came to the conclusion that the accident was due to the negligence of respondent No. 1, the driver of the car. Respondent Nos. 1 to 3 were, thereforee, held liable to compensate the appellants, It was also found that the deceased was earning Rs. 300.00per month, out of which RS. 150.00 could be takenas the contribution of his sons, thereby reducing the loss to the family on account of his death to Rs. 150.00 per month. Dedictiong Rs. 75.00 towards personal expenses of the deceased, the net loss to the family was assessed at Rs 75.00 per month or Rs. 900.00psr year. The age of the deceased was fixed at 55 years. The compensation for six years was calculated a' Rs. 5400.00. Further reduction of 10% for payment being in lump-sum was made to bring the amount to Rs 4860/. It was or her found that the deceased had two houdes. the value of which was estimated at Rs.20.000.00. A sum of Rs.2000.00 was, thereforee, deducted from the comoensatin for accelsration of succession at the rate of 10% of the total value of the property. The net amount payable to the appellants was thus worked out to Rs 2860.00 for which the award was made in favor of the appellant against respondents Nos. 1 to 3. Half costs were allowed. The liability of the the insurance company, respondent No.3, was fixed the extent of the entire amount awarded The petition was dismissed against respondents Nos 4 to 6, living them to bear their own costs.
(4) On notice of the appeal being served, respondents Nos. 1 to 3 filed cross objections under Rule 22 of Order 41 of the Code of Civil Procedure, on the ground that the accident had been caused due to the negligence of respondent No. 4 for which, they were not liable at all; and that thequantum of compensation allowed was excessive
(5) The admitted facts are that the tarred portion of the road (Link Road) at or near the place ofthe accident was 22 feet in width with ten feet of Kacha road, also called the fool-path. on each of its two sides. The road coming from Jangpura (Eros Cinema) side met Link Road, to from a T-Intersection near the place of accident. The car coming from the Northern side, i.e.from India Gate sid was going towards the South. e to defense Colony. whitsthe motor cycle was coming from the opposite direction. There was a collection of rain water on the road near the place of the accident. According to the appellants, water had collected on the kacha portion of the road or the foot-path, while respondents Nos. 1 to 3 say that water had collected in a pit 4' x 14' in size en the tarred portion of the road itself. Mr. D R. Mahajan, the learned counlsel for respondent No. 3, contended that the statement of three persons. namely, the the driver of the car respondent No. 1, who appeared as R1W1, Baldev Nagrath, R1W2 and Balkrihsan, the driver of the motor cycle Pw 15, are the only statements in the case, from which the responsibility for rash and negligent driving of respondents No.1 or of No 4 can be determined. Tome, it appears that the statement of the car driver, respondent No. 1 himself is enough to fasten the responsibility on him According to hirn (ne appeared as R1W1). he was driving towards defense Colony from the India Gate side on that fateful night at a speed of about 15 to 20 miles per hour. When he neared the T-intersection, the motor cycle driven by respondent No. 4, with the deieased riding on its pillion seat, came from the opposite direction at a fast speed without any lights. In order to avoid the standing rain water, the motor cycle came on its wrong side of the road struck against the right head light of the car, fell on its left side and lay on the edge of the road. The motor cycle was coming on its correct side of the road, but its driver, it was stated, swerved towards the right in order to avoid the collected water without giving any horn or signal. The driver of the motor cycla did not receive any injury except some bruises. The pollion rider had already been thrown off and fallen on the road. The car driver, R1W1, further said that the deceased fell, because the motor cyclist had applied brakes The car wag a Plymouth car .of 1955 model, twelve feet in length and six feet wide. There was no taxi at any stage between the motor cycle and the car, although a taxi was standing, according to this witness, at the crossing towards Jangpura side on the left at a distance of about five to sin. feet from the car. There was no damage, according to him, to the motor cycle, Its handle hid tougched the car near the right head light. Its riht leg-guard came into contact with the front right tyre of the car and was-cracked. It is significant to note that according to R lWl, the right edge of the puce portion of the road was seven 19 eight feel from the right wheel of his car. Hi further stated that the right wheel of the car was at a distance of two 13 three feet from the water at the time of the impact. R.1W1, thus admits that the car,at the time of the impact had left only seven to eight feet of th; twenty-two fact wide tarred road Ob its right site. The car was thus being driven admittedly on its wrong side of the road. It is also clear that the right wheel of the car being two to three feel from the edge of the water, the car driver had left hardly two to three feet for the mator cycle to pass, although aboat eight feet of the road lay vicant on his left, six feet of the road being occupied by the car itself. The driver must have seen the on-coming mator cycle, the rain water collected at the side and the vacant road on his left. He should have, in normal circumstances, moved the car further left to leave safe passage between his car and the water edge to allow the motor cycle to pass. Even if the rain water was on the road, as asserted by Mr. D. R. Mahajan. the car driver had not taken sufficient care to enable the on-coming traffic to pass safely by his side. He was father blocking the passage of the on-coming motor cycle. He was, thus, giliy of gross negligence and fash driving.
(6) The site plan prepared by the Sub-Inspector, Police, Shri Piara Singh.PW1, who investigated the case, also shows that the car was on its extreme right side of the road, where broken presss of glass had been found, leaving practically no passage between itself and the collected water for the motor cycle to pass Respondent No l.therefore, cannot escape full responsibility for driving the car in a grossly negligent and rash manner. The cross-objection on this aspect of the matter must fail. The finding of the Tribunal is correct aad is maintained.
(7) The next question urged before me was about the quantum of compensation fixed by the Tribunal, which according to Mr.M.L. Bhargava the learned counsel for the appellants, was wholly inadequate. The Claims Tribunal fixed the age of the deceased at 55 years, which according to Mr. Bhargava was against the evidence on record. The only person who mentioned the age of the deceased as 55 years, was Dr. G. S Miltal, who had examined the dead body, but not for determining the age. He mentioned that age as it was indicated in the inquestsreport. The Tribunal was of the view that some relations of the deceased must have given this age to the police at the time of the preparation of the inquest report. There is nothing on record to show, as to who mentioned this age to the police, nor has any other proof been forthcoming to show that deceased's age was 55 years. In the petition his age was mentioned as 50 years, while his widow Krishna Wanti, when in the witness box, gave his age as 52 to 53 years. The finding of the Tribunal that the deceased was 55 years, thereforee, cannot. be upheld. The deceased appears from the evidence on record to be of 53 years of age maximum at the time of his death. Krishna Wanti, P.W. 10. had stated that the deceased enjoyed very good health and had never fallen ill. His father had died at the age of 73 years. His mother had died at the age of 6C years. His elder step brother, Amar Dass Khurana, who appeared as Public Witness Public Witness 8, was 65 years of age and enjoyed good health. Another brother of the deceased, however, had died at the age of 50 years, but he was said lobe not keeping good health from his childhood. The learned cotinsel for the appellants contended that at under the present conditions, the span of life should have been taken at 70 years, it not more. He cited in support Gomathi Ammal v. Romachandran, where the span of life wag taken to be 70 years. In Madhya Pradesh State Road Transport Corporation, Bhopal v. Munnabai, the probable expectancy of life was fixed at 75 years, when the deceased at the lime of death was 59 years of age. In Sukhdev Singh v Pepsu Road Transport Corporation Patiala, longevity of life was assessed at 70 years. In Rojinder Kaur v. Union of India and Shanti Devi v. General Manager, Punjab Roaaways. longer living span expectation was held to be justified. In the former case, the life expectancy was fixed at about 65 years. In Jaswant Kaur and others v. Ratti Ram, the normal life span was taken to be 70 years, but each case was said to depend on its own facts. Family history was considered relevant for determining the age. In Oriental Fire and General Insurance Company v. Kamal KrishanDras, life span was asseesed at 70 years. In the present case, considering that the father of the deceased lived up to 73 years, while his mother lived up to 60 years, and one of his brothers died at the age of 50 years, it is safe to assess the normal life expetancy of the deceased at 65 years. The deceased, in other words, was expected to contribute to the family income for another 12 years.
(8) The deceased was running a shop, where be sold pan, cigerattes. cocalcola, ice, sweets, toffies, copy books, pencils, etc. Krishna Wanti P. W. 16, the widow, deposed that the deceased used to give her Rs. 300.00per month and even more at times, if so required. Other witnesses have stated that the deceased was having an income of Rs 400.00 to Rs. 500.00 per month. Although, there is no rebuttal, the income of the deceased was mentioned at Rs 300.00' per month in the petition. The assessment of the income of the deceased at Rs. 300.00 per month made by the Tribunal thereforee, is correct and is maintained. The Tribunal, deducted Rs. 150.00 out of this Rs contribution of his son. There is however, no evidence that any of his sons was working in the shop. In fact, no question was put to Krishna Wanti, when she was in the witness box on this aspect. There is, thereforee, no justification for deducting Rs. 150.00 as contribution by the sons. The Tribunal further stated that even after the death of Manohar Lal, the shop was being run by his Sobs and the present income was Rs. 200.00 to Rs. 300.00 per month. But, this appears to have no relevancy, as the sons, in any case. could have earned this amount if they had started working during Manoharlal's life time. Manoharlal's death, on the other hand, has interfered with their studies. Higher education might have enabled them to earn much more The earning capacity of the sons, thereforee, cannot be taken into account for reducingthe income of the deceased. The Tribunal deducted Rs.75/ towords the personal expenses of the deceased, which according to Mr. Mahajan, was inadequate, as the deceased being head of the family, was expected to spend more on himself, especially as he was addicted to cigarette smoking as well Even if we increase the personal expenses of the deceased to Rs.100.00, the balance, which was contributed by him to the family was Rs 200.00 per month or Rs. 2400/per annum. The contribution io the family income which the deceased could have made during 12 years, if he had been alive, thus comes to Rs. 28, 800/, which would be the compensation claimable by the appellants.
(9) The deceased is said to have left two adjoining houses, which according to Public Witness Public Witness 16, his widow, he purchased against his claims for ancestral properly left in Pakistan ofthe value of Rs, 12,000.00. The total present value assessed by the Fribunal of these houses is Rs. 20,000.00. But these houses belonged to the pint family and not tothe deceased alone. There is no question of acceleration of suceession in this case. At the most, one-fourth share in that property, belonging to the deceased, i. e. of the value of Rs. 5000.00, has come over by acesleration to the appellants. Mr. Mahajan has drawn my attention tothe statements of witnesses, according to whom, goods worth Rs. 10,000.00 werelying in the shop; and which have not been taken into account. Even if the full value of these goods is added, the total value of the property coning to the hands of the appellants by accelaration is Rs. l5,000/.. Tea per cent of the value of this amount, i. e. 15.00.00 can fairly 03 assessed as the value of acceleration of succession Deducting this from the compensation amount, the balance comes to Rs. Z7.300/ . Deducting another 10% of the total compensation, i.e. Rs, 2880/, on account of the amont being paid in lump-sum, the balance comes to Rs. 24,420.00.
(10) Mr. Mahajan next contended that although the widow would be entitled to receive compensation during her life time, the sons, who would start earning in a couple of years, would caase to be dependents and would not be entitled to any compensation. The argument of Mr. Mahajan appears to be ill-founded. Under section 110-A of the Motor Vehicles Act, the legal representatives of the deceased and not his dependints, are entitle I to file an application for compensation arising out. of the accident. And further, where all the legal representatives have not joined, the application is to be made on behalf of or for the benefit of all the legal representatives of the deceased. The language of the section shows that it is not the dependents alone, who are enlitled to make this application. It is the legal representatives of the deceased, who have been given the right to apply, as they ail have been deprived of the contribution of the deceased to the family income. The extent of the pecuniary loss suffered by the legal representatives has ta be assessed. in the present case, however, it would not make much differences even if the sons are allowed their share of compensation till the age when they would become independent. The younger son was 13 years of age, while the elder was 18 years of age in September, 1955, when Public Witness PW16 nude her statement They were thus of 11 years and 16 years respsctively at the time of the death of their father. If we take it that they would become independent at the age of 23 years, the younger son would be entitled to compensation for at least nine years, while the elder son would be entitled to receive for four years. The widow, being 48 years of age in September, 1965, when she made her statement in court, was 46 years of age at the lime of the accident. Her life span can be assessed at 65 years. She was, thereforee, to be provided with at least Rs. 66.00 (being one-third of Rs. 200.00, the assessed monthly income of the deceased), lor the remaining 19 years of her life. Calculating even on this basis, it would hardly make any difference. Mr. Mahajan's contention.. thereforee, cannot be accepted. The net compensation, which has been worked above, comes to Rs. 24,420.00. To make it a round figure and to account for all unforeseen contingencies, I consider it safe to award Rs 23.000.00only.
(11) In the result, the award dated May 7, 1966 of the Moior Accident Claims Tribunal is modified to the extent that a sum of I Rs. 23 000.00 (insted of Rs. 2860/ ), is awarded in favor of the appellants against respondents Nos. 1 to 3. The liability of the Ori ntal Fire and General Insurance Company, respondent No. 3, shall be to the extent of the entire amount awarded. The petition against respondents Nos. 4 to 6 shall, however, stand dismissed. The parties to bear their own costs. The cross-objections of the respondems Nos. 1 to 3 also stand dismissed. Respondents Nos. 1 to 3 shall, however, bear the costs of the appellants.