D.B. Lal, J.
1. These seven appeals arising under Section 110-D of the Motor Vehicles Act are directed against the decision of the Motor Accident Claims Tribunal adjudicating upon claims for compensation in respect of an accident involving death of three persons namely Ved Prakash Chopra. Narendra Kumar Arora and Devi Lal.
2. On 1-2-1969 at about 6 P. M. a bus HRA-1244 belonging to Haryana Roadways was proceeding from Simla to Chandigarh. When it reached milestone No. 50 on Simla-Kalka road at a place known as Koti. it was accosted by a truck HRA-1759 loaded with bricks coming from the opposite direction. While the bus was crossing the truck its hind portion struck against the truck and the impact pushed it towards the left breaking the parapet wall with the result that it rolled down and fell inside a khud. As a result of that accident Ved Prakash Chopra and Narender Kumar Arora were killed on the spot, while Devi Lal received multiple injuries and was removed to PGI Hospital. Chandigarh. He expired there on 10-2-1969. Salig Ram respondent was the driver, while Kundan Lal was the conductor of the bus. Accordingly claims were made before the Tribunal by the legal representatives of the three deceased, and these seven appeals arise out of these claims.
3. The legal representatives of Narender Kumar Arora claimed Rs. 7 lakhs and odd while the legal representatives of Ved Prakash Chopra and Devi Lal claimed Rs. 21/2 lakhs and Rs. 11/2 lakhs respectively. The Tribunal has awarded Rs. 1 lakh to the legal representatives of Arora. Rs. 1 lakh again to the legal representatives of Chopra and Rs. 40,000/-to the legal representatives of Devi Lal. They are not satisfied with the adjudication of claims and have preferred these appeals.
4. F. A. Os. Nos. 16. 17 and 21 of 1971 arise out of the claim pertaining to Arora deceased. Of them. F. A. O. No. 17 of 1971 is the cross-appeal filed by Harvana Roadways.
5. F. A. Os. Nos. 18 and 22 of 1971 arise out of a claim pertaining to Devi Lal. of which F. A. O. No. 18 of 1971 is the cross-appeal by the State.
6. F. A. Os. Nos. 19 and 28 of 1971 arise out of a claim pertaining to Chopra, of which F. A. O. No. 19 of 1971 is the cross-appeal by the State.
7. The claimants asserted before the Tribunal that the driver of the bus was rash and negligent. He was coming down-hill and the speed of the bus was exceeding the limit, so much so, that at the time of crossing, the hind portion could not get clearance. The truck was coming uphill and its speed was considerably lower. There was sufficient width of the road. According to one estimate, it was 25 feet. Had the bus slowed down or even stopped, which was the requirement under a direction, to give clearance to up-coming vehicles the accident would not have occurred. Due to the speed of the bus the impact was of so much intensity that the bus iolted and swerved towards left so much so that the driver could not control it and it rolled down inside the khud. As the headlights were on of both the vehicles, it was easy for the driver of the bus to have detected the on-coming truck. One Ram Kumar. ASI (A. W. 8) alone with his Constable Narain Sinah (A. W. 9) were also travelling in the bus. They escaped although they received minor injuries. Ram Kumar immediately went to Solan and lodged F. I. R. (Ex. PA) which, besides narrating the accident, fixed responsibility on the driver of the bus. In that document it was indicated that the driver was rash and negligent, and did not know how to drive on hills. In fact subsequently when a case under Section 304-A started against Salig Ram he made a statement before the Magistrate (Ex. A. W. 3/A) in which he admitted that he was not used to hill driving. He was required to take the bus from Chandigarh to Panipat. But the was compelled to bring it from Chandigarh to Simla. Thus according to claimants, the accident was due to the negligent act on the part of the driver Salig Ram who wag in the service of Haryana Roadways. As such the State of Haryana was liable to pay the compensation.
8. The defence was that the entire mistake was attributable to the driver of the truck who was negligent and came over the bus so much so that its hind-portion got entangled with the truck and the accident occurred. It was pleaded that the speed of the bus was reasonable. The truck was coming with a greater speed and perhaps its driver could not control it. In this manner, the State of Haryana attempted to prove that the proprietor of the truck Darshan Singh was responsible for the accident and as such he should pay the compensation.
9. The claimants produced Ram Kumar. A. S. I.: Narain Singh. Constable; and besides them a few other travellers Raksh Pal Malhotra (A. W. 5) and Janak Singh (A. W. 10). One Sukh Dev Singh (A. W. 4) garage supervisor Himachal Govt. Transport, inspected the two vehicles on 3-2-1969. His report Ex. A. W. 4/A wag proved. According to him the gear of the bus was in neutral position mean-ins thereby that the driver had not changed to a lower gear even though he was on a descent. Jaswant Rai. ASI (A. W. 13) being a representative of the police had reached the spot and he stated that tbe truck was almost 2 feet away from the hill side so that it could not be stated that it had come in the middle of the road so as to strike against the bus.
10. The defence produced two witnesses: R.S. Verma (R. W. 1) and Kundan Lal. Conductor (R. W. 2). Both of them came to state that the truck driver was negligent. Obviously both of them were travelling in the bus and escaped unhurt.
11. The learned Tribunal believed the version of the claimants and held that the driver of the bus was negligent. As such the compensation was awarded against the State of Haryana. and the present appeals are preferred on its behalf.
12. In these appeals it was again reiterated that the fault lay with the driver of the truck. I have gone through the statements of the witnesses produced by the claimants The statements of Ram Kumar ASI (A. W. 8) and Narain Singh Constable (A. W. 9) were rightly believed because the corroboration of their statements was available in the F. I. R. (Ex. P-A) which was lodged immediately after the accident. According to Ram Kumar ASI. he boarded the bus at Solan. He noticed that the driver was fast in diving rather he was 'too fast'. The truck was climbing up and it was on slow speed. Nevertheless the driver went on driving at the same speed and did not give any horn. The witness lumped from the window and that is how he saved his life. He immediately ran to the Police Station. Solan and instituted the report against Salig Ram driver. In fact the giving of horn was not even required. The lights of the two vehicles were on and one could be detected by the other. According to Ram Kumar, the width of the road was 25 feet at the place. The truck was found at a distance of 21/2 feet from the hill. This statement decidedly proved that the truck was on its correct side and never came on the middle of the road as suggested by the defence. There were 40 passengers in the bus and so it was not over-crowded. According to Ram Kumar, the speed was 35 to 40 KM per hour. It was decidedly too fast a speed for a bus driven on mountainous region. According to the witness, the speed of the truck was hardly 10 to 15 KM per hour. Narain Singh (A. W. 9) supported the version of Ram Kumar. ASI. He also stated that the truck was at 2 feet away from the hill side. Raksh Pal Singh (A. W. 5) stated that the lights of the vehicles were switched on and so there was no difficulty in finding out the wav. Janak Singh (A. W. 10) a fellow traveller also supported these witnesses.
13. As regards the defence witnesses. Verma (R. W. 1) was sitting in the middle of the bus and hence perhaps he could not detect the speed at which the vehicle was running. He too admitted that the lights were on and the truck was detected from a distance. He stated that there were hardly 25 passengers in the bus. Kundan Lal. Conductor (R. W. 2) was naturally an interested witness. He also admitted that the lights were put on and he could see the truck coming from a distance. According to him. the speed of the truck was 30 to 40 KM per hour, which is simply unbelievable. It was a heavy truck loaded with bricks and the speed could not be that much while going uphill. The witness Kundan Lal was sitting on the rear-most seat. He could have acquired no knowledge as to the speed of the truck. He admitted that the truck was at about 4 feet from the hill side at the time of the accident. This statement again proves that the fault did not lay with the driver of the truck.
14. The driver Salig Ram was prosecuted under Section 304-A of the I. P. Code. He admitted before the Magistrate that he had no driving licence for hills and as such it was almost criminal for such a driver to have been deputed on this bus which was coming from Chandigarh to Simla and the entire region was mountainous. Since Ex. A. W. 3/1 is an admission of a party to these claims, the same is admissible being against the interest of such party. Salig Ram was avoided to be produced in the case. The learned counsel for the appellants submitted that he was assisting all along the counsel in cross-examining the witnesses. He was the best witness to tell how far he was negligent or not negligent in the driving. Since he did not appear as witness, every presumption will be drawn against him. According to Jaswant Rai, ASI (A. W. 13), a vehicle going down-hill was required to stop to give a cross to the vehicle coming uphill. This was another act of negligence committed by Salig Ram as he did not obviously stop the bus, but rather went on with the same speed and thus caused the accident.
15. With this evidence on the record, the learned Tribunal was justified to give a finding that Salig Ram was rash and negligent. The accident was due to a fault committed by him. It is high time for the Transport authorities to take a lesson from this incident so that inexperienced drivers who are ignorant of hill-drive are not sent on buses which come from plains. It appears someone responsible for allocating the drivers did not pay heed to this requirement. Salig Ram very much stated before the Magistrate that he was unfit for hill-driving and did not even possess a licence for a hill-drive. As such he should not have been deputed on the ill-fated bus. Decidedly he caused an accident which cut short the lives of these three persons.
16. The negligence being proved of the driver Salig Ram. the State of Harvana and the Haryana Roadways were decidedly responsible to pay the compensation. To that extent, the finding cannot he assailed and must be upheld.
17. Although cross-appeals were filed by the State of Haryana and Haryana Roadways no one appeared on their behalf to pursue the appeals. In fact the appeals filed on behalf of the claimants were (heard in the absence of the respondents.
18. Now I shall advert to the other important plea regarding quantum of compensation. The learned Tribunal has made a deduction in compensation on account of insurance provident fund, gratuity, family pension and lump-sum payment.
19. The principles for determination of compensation are well settled. In Gobald Motor Service v. Veluswami. (AIR 1962 PC 11 their Lordships quoted with approval the statement of the law on the point by Lord Russell of Killowen and Lord Wright in Devies v. Powell Duffrin Associated Collieries Ltd.. (1942 AC 601). Lord Russell stated :--
'The general principle, which has always prevailed in regards to the assessment of damages under the Fatal Accidents Act is well settled, namely, that any benefit accruing to a dependent by reason of the relevant death must be taken into account. Under those acts the balances of loss and gain to a dependant by the death must be ascertained, the position of each dependant being considered separately.'
Lord Wright elaborated the theme further thus:--
'The damages are to be based on the reasonable expectation of pecuniary benefit or benefit reducible to money value. In assessing the damages all circumstances which may be legitimately pleaded in diminution of the damages must be considered............The actual pecuniary loss of each individual entitled to sue cart only be ascertained by balancing, on the one hand. the loss to him of the future pecuniary benefit, and on the other any pecuniary advantage which from whatever source comes to him by reason of the death.'
20. Shortly stated, the general' principle is that the pecuniary loss can be ascertained only by balancing, on the one hand, the loss to the claimants of the future pecuniary benefits and on the other, any pecuniary advantage which from whatever source comes to them by reason of the death, that is the balance of loss and sain to a dependant by the death must be ascertained. The starting point is the amount of wages which the deceased was earning.. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a basic figure which will generally be turned into a lump-sum by multiplying it with the number of years the deceased was expected to live minus the years he had already lived. The deductions may be made for lump-sum payment as that would be an accelerated benefit to the dependants. But regard must be had to future increments and chances of promotion. If such a regard is not possible due to any uncertainty, perhaps benefit for lump-sum payment need not be accounted for. In order to capitalize the monthly contribution of the deceased towards the maintenance of his family, which will of course be after deduction of his personal expenses, regard cannot be had to president fund, gratuity, insurance or family pension. Whatever was payable on account of death has to be accounted for. If any amount is payable at the time of death the same is not liable to be accounted for. Insurance money is paid because of premium payment and obviously under insurance contract. The said money is never payable on account of the death of the person insured. Death is no doubt a step in the insurance contract. That will not mean that insurance money is pay-able because of death but it is payable because the premiums were paid and a contract was entered into for such payment after death. Similarly provident fund, gratuity and family pension are not dependent upon death, but they are payable because of the saying or thrift practised by the deceased. Whatever was contributed towards provident fund became payable. That did not depend upon the death of the person. The gratuity and family pension were paid because the deceased had served for a number of years. Therefore, the learned Tribunal committed the obvious error of accounting for these payments. The amount of compensation could not be decreased because of such payments made by the employer.
21. If authority is needed, there are several. In Damvanti Devi v. Sita Devi. (1972 Acc CJ 334) (Puni) assets created out of savings including residential house were not taken care of for deduction. Similarly insurance money was not accounted for. The expectancy of life was considered 60 years. In Bhagwanti Devi v. Ish Kumar, (1975 Acc CJ 56) (Delhi) gratuity, pension provident fund and insurance were not accounted for and no deductions were allowed. Similarly no deduction was permissible under lump sum payment. The former were considered benefits for which the deceased had paid. They are in the nature of quid pro auo and these were benefits payable on death and not benefits arising out of death. The real test is if these benefits would have arisen independent of death or arose on account of death. In Kailashwati v. Haryana State. 1974 Acc CJ 514 = (AIR 1975 Him Pra 35) no deduction was permitted for lump sum payment because future increments were not taken care of. Similarly no deduction was allowed for pensionary benefits. In Sood and Co.. Kulu v. Surjit Kaur. (1973 Ace CJ 414) (Puni) no deductions were permitted for gratuity provident fund and also lump sum payment. In Raja Mohktar Bin Raja Vaacob v. Public Trustee. Malaysia. (1971 Acc CJ 309) (Malaysia) and Perry v. Cleaver. (1969 Acc CJ 363) (HL) no deductions were allowed for pensionary benefits and insurance money In Major Jaglit Singh v. Kartar Singh. (1973 Acc CJ 147) (Punj). no deductions were permitted for lump sum payment. One-third of the total income was held to be presumed for personal expenses of the deceased. Thus the tort-feasor namely the common carrier in the present case should not have been given the benefit of past service and thrift of the deceased. The learned Tribunal was therefore, in error in making deductions for insurance, provident fund gratuity family pension and lump sum payment.
22. It is then to be ascertained, in individual cases, as to what should be the quantum of compensation payable to the claimants.
23. At first I shall take up F. A. Os. 18 and 22 of 1971. This claim relates to the death of Devi Lal Sharma. The witnesses Shivan Devi (P. W. 2) and T.N. Sharma (P. W. 7) stated that the deceased was in sound health. His earnings were Rs. 850/- as pay and Rs. 150/- as house-rent allowance. The expectancy of life has been considered 60 years by the learned Tribunal, and I find no ground to interfere with that decision. As regards the commissions on sales and the bonus, these depended on imponderable factors and therefore should not be accounted for, The learned Tribunal was right in considering that Rs. 1,000/- per month was the basic income. It would be Rs. 12,000/-per year. If 1/3rd personal expenses of the deceased are deducted, the amount comes to Rs. 8,000/- per year. This multiplied by 9 years span of life will five the amount of Rs. 72.000/-. The learned Tribunal has awarded only Rs. 40.000/- which is incorrect. In my opinion. Rs. 72.000/-are payable as compensation.
24. F. A. O. No. 18 of 1971 is a cross-appeal filed by the respondents. For the reasons stated, the cross-appeal is dismissed.
25. F. A. Os. 16. 17 and 21 of 1971 are appeals relating to the death of Narender Kumar Arora. The claim was of Rs. 7 lakhs and odd. The learned Tribunal has awarded Rs. 1 lakh as compensation. Admittedly the total emoluments of Arora were Rs. 950/- per month. He was 27 years old and the remaining span of life was 33 years. The yearly income was thus Rs. 11,400/-. Out of this, one-third are deducted for personal expenses and the total comes to Rs. 7,600/-. If this is taken to be the income for another 33 years, the total amount comes to Rs. 2,50,800/-. The other deductions made by the learned Tribunal for insurance gratuity provident fund, family Pension or lump-sum were not permissible. Thus the total compensation Payable would be Rs. 2,50.800/-.
26. It was stated by Dr. G.L. Arora (A. W. 16). Shrimati D.K. Arora (A. W. 11) (parents) and Rita Arora (A. W. 15) (widow) that Rs. 200/- were being paid by the deceased to his parents. Dr. G.L. Arora is 65 years while Shrimati D.K. Arora is 54 years. If their span of life is taken to be 10 years more they suffered on account of death a loss of Rs. 24,000/-. Out of the amount of Rs. 2,50.800/- the sum of Rs. 24,000/- is awarded to the parents Dr. G.L. Arora and Shrimati D.K. Arora for loss of love, affection and consortium. In this manner. Rs. 2,26.800/ are awarded to Rita Arora and Rs. 24,000/- are awarded to the parents.
27. The cross-appeal filed by the respondents F. A. O. No. 17 of 1971 is dismissed for the reasons stated.
28. F. A. O. No. 21 of 1971 is the appeal filed by the parents while F. A. O. No. 16 of 1971 is the appeal filed by Rita Arora. Both these appeals are allowed to the extent mentioned above.
29. F. A. Os. 19 and 28 of 1971 are appeals pertaining to the death of Ved Parkash Chopra. His total emoluments were Rs. 737.60 provide statement of R.D. Joshi (A. W. 7) and his certificate Ex. A. W. 7/A. The deceased was 38 years old and he had to live for another 22 years which could be the expectancy of life. The emoluments comprised of special pay dearness allowance, hill compensatory allowance and winter allowance. The last two allowances were earmarked for Simla. The deceased could be posted anywhere in India. If the emoluments are taken to be Rs. 737/- and 1/3rd is deducted for his personal expenses, the figure comes to Rs. 491/- which can be rounded-off at Rs. 500/-. According to Santosh Chopra (A. W. 6) the widow Rs. 500/- or near about were spent by the deceased on family expenses. With the figure of Rs. 500/- per month as basic income, the yearly income was Rs. 6,000/-. If it is multiplied by 22 years, the amount comes to Rs 1,32.000/-. This amount was Payable as compensation to the claimants. To that extent the anneal F. A. O. No 28 of 1971 is allowed. As regards the cross-appeal F. A. O. No. 19 of 1971 for the reasons stated, the same is dismissed.
30. As regards interest to be awarded in these appeals, in my opinion. 4% interest per annum from the date of this decision to the date of payment is also awarded to the claimants.
31. In some of the appeals, the Insurance Company for the common carrier is also a party. The insurer in such appeals shall, of course, be liable to the extent of their liability under the insurance contract.
32. The appeals are accordingly decided in the manner stated above. In the special circumstances, the parties shall bear their own costs. The dismissal of cross-appeals is of course, ex parte without making any orders as to costs
33. This decision is being given in F. A. O. No. 16 of 1971 and shall form part of the judgments in the other appeals cOPY of this judgment shall be kept in the record of other appeals.