Rajindar Sachar, J.
(1) This is an appeal against the order of the learned single Judge by which he has awarded under the Motor Vehicle Act an amount of Rs. 38,522.00 by way of compensation with interest at 6 per cent till realisation with costs to the appellants for the death of their son Ramesh Ghander.
(2) The accident took place on 25-8-1970. The bus was being driven by Ajit Singh, Driver. The bus belonged to the D.T.G, respondent No. 2. It was stated that the Driver was driving the bus rashly and negligently and the accident took place because of the fault of the Driver. The Trial Court as well as the learned single Judge have held that the accident occurred due to rash and negligent driving of respondent No. 3, Driver, which resulted in the death of Ramesh Ghand. This being a finding of fact there is no occasion to interfere with it in this appeal and the same is affirmed.
(3) The deceased was 24 years of age at the time of his accident. The claim was put in by his father and mother. At the time of accident the age of father was 53 years and that of mother 49 years. The learned single Judge has calculated dependency at 16 years. This period is not seriously challenged by the learned counsel for the appellant. We are of the view that this was a reasonable period and we uphold the same.
(4) Ramesh Chand the deceased wag running a Commission Agent's shop. It was admitted to be a family business and wai being assessed as a Joint Hindu Family business. The learned Single Judge has held that income from the shop should be taken to be Rs. 7,000.00 . This he has done because the father of the deceased had stated in his evidence that the income from the shop was between Rs. 7,000.00 to Rs. 9,000.00 per year and the learned Judge, thereforee, thought that Rs. 7,000.00 would be a safe figure. The counsel for the appellant, Mr. Goel, however, protests and says that there is on record an income tax assessment order assessing the income from the shop at Rs. 8670.00 per annum. Mr. Malhotra, counsel for the respondents does not dispute this. In view of the fact that the assessment has been made of the shop at Rs. 8670.00 per annum that being within the range of Rs. 7,000.00 to Rs. 9,000.00 per year there is no justification not to accept that figure. The father had also given the upper limits of the income at R(r). 9,000.00 and, thereforee, accepting the lowest figure of Rs. 7,000.00 is not justified in view of the documentary record of the assessment order being for at Rs, 8670.00 per annum as the income. We would, thereforee, modify this figure of income as found by the learned single Judge and hold that the income from the shop was Rs. 8670.00 per annum instead of Rs. 7,000.00 per annum.
(5) The trial court had held that an amount of Rs. 66.00 must have been spent by the deceased on himself out of the income of the shop and the rest was given to the family. The learned single Judge however, has raised this amount to Rs. 100.00 per mensem. There is no evidence to say that it was otherwise. The evidence of father was also that the deceased was only keeping Rs. 100.00 per month for himself. We see no reason to differ from the view of the learned single Judge. This would mean that accepting the income at Rs. 8670.00 per annum and deducting there from Rs. 1200.00 on account of personal expenses of the deceased the balance which was available to the family would come to Rs. 7470.00 per annum. Taking the dependency for 16 years the amount of loss would come to Rs. l,19,520.00 .
(6) The learned single Judge however, had deducted Rs. 1200.00 out of the income of Rs. 7000.00 per annum in order to work out the income that would be available to the appellants, which comes to Rs. 5800.00 per annum. But the learned single Judge held that this whole amount could not be said to be available to the family. He said so because, according to him, the business being a Joint family one, 1/3rd of the income must be deducted on account of the share belonging to brother of the deceased and thus not available to the appellants. Now there is no evidence at all that any amount out ofthe income of the family shop was being given to the elder brother of the deceased. It is common case that the elder brother of the deceased was in service of the Railway and was an Assistant Station Master in Northern Railway. It is also not disputed that lie is married and lives separately. There is no evidence that any amount was being spent or given to him from the income ofthe shop. The learned single Judge however, proceeded on the assumption that being a joint family business l/3rd ofthe income was of the elder brother, as not available to family. In this the learned Judge took it as if the partition of the shop had taken place on the death ofthe deceased, and one-third of the share would automatically have come to the elder brother of the deceased. This was not correct view in law, because to calculate the loss of income from the shop, deduction could only be made if any amount was actually being received by him, (which admittedly it was not). So long as the family was continuing the business elder brother of the deceased could not claim any share of income of the shop, more so, in the presence of father. Be that as it may, the question of deduction could only have arisen in case actual outgo of income and not of notional partition share which might have fallen to members in case there was a partition. In fact except the amount which was being spent personally on him the rest of the amount the deceased was passing on to the family, that is, his father and mother and he being an unmarried one obviously shared the benefits and comforts of the family house being run by them. We see no justification as to how any deduction could be made on this supposed share of the elder brother of the deceased.
(7) It may also be noticed that it is a common case that the deceased was alone running the shop. The elder brother was in service and the father being an old man was not able to help at the shop. Income was generated due to the deceased's individual efforts and capacity. This is immediately clear from the fact that soon after his death the business had to be sold and closed down which obviously showed that the income was being generated due to the efforts and capacity of the deceased and not because of the family.
(8) We, thereforee, see no justification to make only deduction of Rs. 7470.00 per annum and set aside the finding of the learned single Judge who held to the contrary.
(9) Another deduction made by the learned single Judge is of the amount of Rs. 23,334.00 . This he has been done because there is evidence that after the death of the deceased the shop was closed and sold for Rs. 35,000.00 . The learned single Judge held that out of this 2/3rd of the amount being the share of the deceased and the father was received by the father. This amount had to be deducted as this benefit was gained by parents on account of the death of Ramesh Chander. We strongly dissent. There is no question of deriving any benefit because of death. This money is not being received by the parents because of the death. This is the amount of realisation for the sale of stock etc. of shop. Tragedy of death forced the appellants to sell the shop. Negligence of the respondent cannot dilute its liability by being allowed to put its soiled hands into the personal capital asset of the family. This amount of Rs. 35,000.00 was realised on account of closing the business and for the stock of the firm. The appellant had specifically stated that he did not get anything for the goodwill of the firm. The realisation of the capital from the sale of the shop, which was necessitated by the death of the deceased, can under no circumstances be utilised for lessening the liability. It is now well settled by series of decisions (of this Court) that even the receipt of insurance, provident fund, pension or gratuity benefits by the dependents of the victim of an automobile accident must be altogether excluded from consideration in the award of compensation to them under Section 110-B of the Act. (See Bhagat Singh Sohan Singh v. Smt. Om Sharma and others . On a parity of reasoning it is impossible to subscribe to the view of the learned Single Judge that the realisation by the deceased's family on account of the sale of the capital assets from the shop would justify the scaling down of compensation. 'This would be adding insult to injury by permitting this deduction for the benefit of the Respondent who has been found negligent and is responsible for causing the death would be in fact to reward him for his negligence. We would, thereforee, set aside this finding and hold no deduction on this account is called for.
(10) We would, thereforee, allow the appeal and modify the order of the learned single Judge and hold that the appellant is entitled to Rs. l,l9,520.00 .
(11) The trial court had awarded a sum of Rs. 11,520.00 and directed that it will recover interest at 6 percent from the date of the award which is 17-2-1977. Counsel for the appellant says that interest should have been paid from the date of application, that is, 14-12.1970 to the date of the award. We find sufficient force in this submission and would, thereforee, allow interest at the rate of 6 percent on the said amount of Rs. ll,520.00 from the date of the application to the date of the award by the trial court.
(12) The learned single Judge has raised the amount of compensation to Rs. 38,522.00 and has allowed the interest at 6% till realisation. This has been interpreted as permitting interest to be given only from the date subsequent to the order of the learned single Judge. Considering that there was an enhancement by the learned single Judge it is only fair that the enhanced amount should carry interest from the date of the order of the trial court to the date of the order of the learned single Judge. Naturally any adjustment for interest already paid on the amount awarded by the trial court within that period will be adjusted. As for the amount that we have awarded the same will carry interest from the date of our order of today till the date of realisation. The appeal is, thereforee, allowed as above with costs. (D.B.)