K.N. Shukla, J.
1. Both these appeals by the rival parties arise out of the award made by the Motor Accidents Claims Tribunal, Ratlam is Claim Case No. 4 of 1974 dated 13-2-1978. These appeals came up for hearing before a Division Bench of this Court where a question arose whether the Claims Tribunal was right in directing that payments received by the claimants on account of the Life Insurance Policy of the deceased. Provident fund, family pension, gratuity and ex gratia payment were deductible from the total amount of compensation assessed on account of the death of the deceased. The Division Bench noted the difference of opinion expressed by different High Courts on this question and referred the appeals for decision by a larger Bench. The appeals have, therefore, been placed before the Full Bench for decision.
2. The accident in which Iqbal Bahadur Mathur lost his life occurred on 12-7-1973 at about 10.00 p.m. on the main street, of Ratlam city. On the night of the accident, the motor cycle No. MPM 6099 owned and driven by Rajendrasingh (non-applicant No. 1), dashed against Iqbal Bahadur Mathur. Iqbal Bahadur Mathur received injuries and succumbed thereto the same night.
3. Claimant No. 1 is the widow, claimant No. 2 is the son and claimants 3 and 4 are the unmarried daughters of the deceased. Their case was that the accident occurred because non-applicant No. 1 Rajendrasingh was driving the motor cycle in a rash and reckless manner. It was pleaded that Iqbal Bahadur Mathur was a Government employee and was receiving a salary of Rs. 750 per month and was also practising as a homeopath. According to the claimants the deceased was a healthy person aged 54 years. He was expecting promotion and pay hike in the near future. Besides, he would have been gainfully employed on account of his past experience in the State Industrial Department Claimants laid a claim for Rs. 2 lacs as compensation.
4. Non-applicant No. 1 Rajendrasingh and non-applicant No. 2 the Insurance Company denied the liability. It was denied that the accident occurred due to rash and negligent act of Rajendrasingh. They also denied the quantum of compensation claimed. It was pleaded that the claimants received insurance amount, family pension and gratuity on the death of Iqbal Bahadur Mathur and this amount was liable to be deducted from the amount of compensation, if any.
5. The Claims Tribunal held that the accident occurred due to negligence of non-applicant No. 1 Rajendrasingh and compensation was payable to the claimants by Rajendrasingh and the Insurance Company with which the vehicle was insured. Estimating the total compensation at Rs. 32,000 the Claims Tribunal observed that the claimants had received Rs. 23,000 on account of Insurance, provident fund, family pension and ex gratia amount, and this amount was liable to be deducted from the amount of compensation. The Tribunal, therefore, awarded a sum of Rs. 9,000 as compensation payable to the claimants. Out of this amount the Tribunal fastened the liability of Rs. 5,000 on the Insurance Company and the rest on Rajendrasingh because according to the Tribunal the liability of the Insurance Company was limited to Rs. 5,000 only under Section 95 (2) (b) (4) of the Motor Vehicles Act.
6. In Misc. Appeal No. 122 of 1978 non-applicant No. 1 Rajendrasingh has challenged his liability, the quantum, and also the finding about the allegedlimited liability of the Insurance Company. In Misc. Appeal No. 123 of 1978 the claimants have sought enhancement of compensation. They have further challenged the finding about deduction of the alleged benefits out of the total amount of compensation assessed by the Tribunal.
7. When the matter came up for hearing before the Full Bench, learned counsel for the claimants submitted that he would confine his claim in appeal to the deductions made by the Claims Tribunal and would not dispute the amount of compensation determined by it. The learned counsel for the Insurance Company Shri A.H. Khan conceded, and rightly so, that the liability of the Insurance Company was not limited to Rs. 5,000 as erroneously held by the Tribunal but it covered the entire amount of Rs. 32,000 assessed by the Tribunal. It is manifest that the Claims Tribunal wrongly applied Section 95 (2) (b) (4) of the Motor Vehicles Act. Actually the liability of the Insurance Company was covered by Section 95 (2) (c) of the Act and accordingly the Insurance Company was liable to indemnify the insurer in respect of the entire sum of damages awarded against him.
8. Learned counsel for the appellant-non-applicant No. 1 Rajendrasingh, Shri N.S. Purohit did not dispute before us the finding about the liability of this appellant for payment of compensation to the claimants particularly in the light of the fact that the entire liability had to be borne by the Insurance Company.
9. The only point, therefore, which remains for consideration is whether the deductions directed by the Claims Tribunal out of the amount of compensation assessed by it were justified.
10. As already noted by the Division Bench in its order of reference, there is a sharp difference of opinion among the High Courts on this point. Some High Courts are of the view that payments on account of Life Insurance Policy, gratuity etc. are not deductible from the amount of compensation. (See Damyanti Devi v. Sita Devi, 1972 ACJ 334 (Punj & Har); Sood & Co. v. Surjit Kaur, 1973 ACJ 414 (Punj & Har); Life Insurance Corporation of India v. Legal Representatives of deceased Narayanbhai Maujabhai, 1973 ACJ 226 : (AIR 1973 Guj 216); Bhagwanti Devi v. Ish Kumar, 1975 ACJ 56 (Delhi); Amthibai Maganlal v. Supdt. Geophysicist, O.N.G.C., 1976 ACJ 72 (Guj); Amarjit Kaur v. Vanguard Insurance Co. Ltd., 1981 ACJ 495 : (AIR 1982 Delhi 1); Sambhupada v. Sobhrani Sen Sharma, 1980 ACJ 180 (Cal); H. P. Road Transport Corporation v. Jai Ram, AIR 1980 Him Pra 16 and Prataprai v. Bhupatsing, 1982 ACJ 316 : (AIR 1982 Guj 72).)
11. Contrary view has been taken in Sushila Devi v. Ibrahim, 1974 ACJ 150: (AIR 1974 Madh Pra 181); H.P. Jaikumar Chhaganlal v. Mary Jerome D'Souza, 1978 ACJ 28 : (AIR 1978 Bom 239) and Karnataka State Road Transport Corporation v. A.R Satishchandra, 1981 ACJ 138 (Kant).
12. Then there are some decisions in which a small percentage (ranging between 10 to 15 p. c.) of the amount received on account of Insurance, G.P.F., Gratuity, Pension etc., has been deducted. Thus we find that the question whether deductions on account of receipt of Insurance, G.P.F., Gratuity and Pension, should be allowed or not and if allowed, should it be the entire sum or part of it, are in a fluid stale so far as judicial decisions are concerned.
13. Supreme Court in Gobald Motor Service Ltd. v. Veluswami (AIR 1962 SC 1), made some observations, reproduced below, on which reliance was placed by the learned counsel for the non-applicants Rajendrasingh and the Insurance Company:--
'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 benefit and on the other any pecuniary advantage which from whatever source comes to them by reason of the death, must be ascertained.'
The above observations were based on the decision of the House of Lords in Davies v. Powell Duffryn Associated Collieries Ltd. (1942 AC 601'). These observations in Gobald Motor Service were again referred to in Municipal Corporation of Delhi v. Subhagwanti (AIR 1966 SC 1750) and Shekhupura Transport Co. Ltd. v. Northern India Transporters Insurance Co. Ltd, (AIR 1971 SC 1624).
14. Facts in Gobald Motor Service (supra) show that the observations made by their Lordships of the Supreme Court laid down general guideline. Actually the question whether amounts received on account of Insurance, gratuity etc. or any other payments were deductible or not for determining the amount payable to the claimants, did not arise at all in the above case. The deceased Gajratham in the cited case was not a government servant and, therefore, whether payments on account of Insurance, Provident Fund, Family Pension, Gratuity etc. were deductible from the assessed compensation or not, never arose for decision in Gobald Motor Service (AIR 1962 SC 1).
15. The case of Davies v. Powell Duffryn Associated Collieries Ltd. (1942 AC 601) (supra) referred to in Gobald Motor Service (AIR 1962 SC 1) did not consider the question of deduction payments made to the legal representatives of the deceased on account of insurance, Gratuity, Pension etc. The Law Lords were considering the question whether payments made in an award to the legal representatives of the deceased under the Law Reforms (Miscellaneous Provisions) Act, 1934, were deductible while determining damages under the Fatal Accidents Act, 1846. It was held therein that the words in Section 1 Sub-section (5) of the Law Reforms Act, 1934, could not be interpreted so as to make double payments for the loss to the estate under the Fatal Accidents Act as well as the Law Reforms Act. In other words it was held that duplicate payments could not be made under these two statutes for the same cause of action.
16. It will not serve any purpose to examine all the decisions pros and cons, on the question. However, it is necessary to take into account the decision of the Madhya Pradesh High Court in Sushila Devi v. Ibrahim (1974 ACT 150): (AIR 1974 Madh Pra 181). Sen, J. (as he then was), who wrote the judgment for the Court discussed this aspect in paragraphs 24 onwards. He relied on the decision of the Privy Council in Grand Trunk Railway Company of Canada v. Jennings ((1888) 13 AC 800). Their Lordships of the Privy Council in the above cited case while considering the provisions of Lord Campbell's Act (Fatal Accidents Act, 1846) made the following observation:--
'Where the widow of deceased is the plaintiff, and her husband had made provision for her by a policy on his own life in her favour, the amount of suchpolicy is not to be deducted from the amount of damages previously assessed irrespective of such consideration. She is benefited only by the accelerated receipt of the amount of the policy, and that benefit being represented by the interest of the money during the period of acceleration, may be compensated by deducting future premiums from the estimated future earnings of the deceased.'
The observations reproduced above do not support the view that the entire insurance amount should be deducted from the total amount of compensation assessed as payable to the legal representatives, In point of fact, the Privy Council did not interfere with the finding of the Court of Appeal of Ontario refusing to deduct the amount paid to the claimants under the Life Insurance Policy of her deceased husband.
17. In paragraph 32 in Sushila Devi's case (AIR 1974 Madh Pra 181) (supra), Sen, J. summed up various authorities considered by him and observed (at p. 189):--
'To sum up, in claim for damages for death under Section 110-B of the Motor Vehicles Act, 1939 as it now stands, sums payable on death under any contract of social assurance or insurance are to be disregarded, but the responsible prospect (a) of receiving benefits such as compulsory employers' insurance, whether contributory or non-contributory, gratuity and pension have to be taken into account.'
Thus, the insurance amount paid on the life insurance policy of the deceased, was held to be not deductible by this Court also in Sushila Devi's case.
18. It will be, therefore, useful to examine the principles for award of compensation in the event of a fatal accident. As rightly observed by Sen, J., in Sushila Devi's case, the law in England has undergone a sea-change so far as compensation payable to the legal representatives of a victim of a fatal accident, is concerned. It is accepted all around that the law of torts in India has developed on the lines of the English Common Law.
19. There is a succinct and very illuminating discussion by Ramaswamy Iyer in his celebrated treatise on the Law of Torts. A few extracts may be reproduced usefully:--
'We live in an age of change and revolution in several sphere of our life, thought and activity, and law is no exception to them. The process of change is evident in different branches of law and more so in tort law, which is a live branch of law in the process of expansion to meet modern needs.'
'Apart from these statutory changes, Courts have also responded by means of their decisions to the need for change and reforms.'
(See Ramaswamy Iyer's Law of Torts 7th Edition, Chapter-I, Para 22 at p. 25),
20. In Sushila Devi's case (AIR 1974 Madh Pra 181), Sen, J. lamented the statutory deficiency in India and hoped for suitable reformative legislation on the English lines. Some High Courts, as noted earlier, however, have held that under the scheme of the Motor Vehicles Act, Courts are competent to take note of the evolution in this branch of law and grant appropriate relief to the legal representatives of a person who is a victim of a fatal accident.
21. Section 110-B of the Motor Vehicles Act empowers the Tribunal to 'make an award determining the amount of compensation which appears to it to be just.' Section 1 of the Fatal Accidents Act, 1855 lays down that the Court may give such damages as it may think proportionate to the loss resulting from such death to the parties respectively for whose benefit such action shall be brought. Section 2 provides for compensation for any pecuniary loss to the estate caused by the wrongful act. In M/s. Sheikhupada Transport Co.'s case (AIR 1971 SC 1624) (supra) the Supreme Court left the question open whether the basis for fixing compensation under Section 110-B of the Motor Vehicles Act is wider than under the Fatal Accidents Act, 1855. On an assumption that if compensations were to be fixed under the Fatal Accidents Act, the Court held that this should be arrived at after balancing the loss of future pecuniary benefit and the advantage 'by reason of death'. In this case also no question of considering any particular item of deduction arose.
22. Damages for personal injuries are payable under the common law of England. Principles evolved under Common Law for personal injury cases so far as they can be applicable to cases of Fatal Accidents Act can provide the necessary guidelines for deciding the question posed before us. The leading case is Parry v. Cleaver by the House of Lords reported in 1969 ACJ 363. The claimant in the cited case had sustained injuries in a motor accident as a result of which he was discharged from service. He was awarded disablement pension and the question arose whether the pension received by him should be deducted while assessing the liabilities. For the claimant it was urged that pension, like life insurance was the product of the employee's past services or thrift and it was neither equitable nor just that the tortfeasor should take over the benefit of the case. On behalf of the opposite party the contention was that plaintiff was entitled only to the actual loss suffered by him and the pension received by him should be deducted. The Law Lords discussed the principle in great detail and covered all the English authorities up-to-date. It will be appropriate to reproduce certain relevant observations of Lord Reid setting out the principles in such cases:--
'As regards moneys coming to the plaintiff under a contract of insurance, I think that the real and substantial reasons for disregarding them is that the plaintiff has bought them and that it would be unjust and unreasonable to hold that the money, which, he prudently spent on premiums and the benefit from it should enure to the benefit of the tortfeasor. Here again I think that the explanation that this is too remote is artificial and unreal. Why should the plaintiff be left worse off than if he had never insured? In that case he would have got the benefit of the premium money; if he had not spent it he would have had it in his possession at the time of the accident grossed up at compound interest. I need not quote from the well-known case of Bredburn v. Great Western Rly. Co. But I may refer to an old Scottish case, Forgie v. Henderson where the pursuer was assaulted by the defender. During part of his resulting illness he received an allowance from a friendly society, and Lord Chief Commissioner Adan in charging the jury'.
'I do not think you can deduct the allowance from the Society, as that is of the nature of an insurance, and is a return of money paid.''
Though the above case dealt with compensation for personal injury, the principle of compensation has been decided in the touchstone of equity and reasonableness which are the postulates under the Motor Vehicles Act and the Fatal Accidents Act also. Therefore, the principle enunciated in Parry's case can be applied mutatis mutandis to cases of fatal accidents as well. The principle is clear. If the deceased was entitled to the amount of insurance under a contract and for which he had paid premiums (as in the present case) the receipt of such an amount by the legal representatives is not dedutcible from the damages payable to them. The deceased had not insured himself and paid premiums all the years during his lifetime for the benefit of the tortfeasor. This sum represented his thrift for his own benefit and for the benefit of his family. It was, therefore, not for the tortfeasor to seek any advantage out of this receipt.
23. The same principle will apply to payments of provident fund and gratuty. Provident fund constituted the amount which the deceased had himself deposited out of his salary 'for the rainy day.' This amount was payable to him and the family would have taken the benefit of this amount even if the deceased were to be alive. This amount was not an advantage 'by reason of his death'. This sum was, therefore, not deductible from compensation.
24. Gratuity under the conditions of service was the right of the deceased employee after completing certain years of service and had he survived he would have received the same and his dependents would have taken advantage thereof. Payment of gratuity was not necessarily consequential to his death but was otherwise also payable to him. The amount of gratuity paid to the widow could not be deducted.
25. Another item deducted by the Tribunal was ''family pension', granted to the widow at Rs. 112 per month. The question which arises before us is whether this family pension should be taken into consideration while determining the amount of compensation. Answer to this question will depend on several factors. Family pension may be contributory or non-contributory under the M. P. Civil Services (Pension) Rules, 1976 or under similar rules in that behalf. Family pension may be payable on the basis of the contributions made by an employee in some form or the other or it may be entirely paid by the employer. Unless proper material is placed before the Tribunal about the nature and incident of such pension, which in the present case was not done, no rule can be laid down about deduction or otherwise of such amount which is paid to the dependent of a deceased employee. Secondly assuming that such a pension is non-contributory i.e. paid by the employer on his own, a deduction can be made only if the Tribunal has included all the probable benefits available to the deceased in his full span of life while determining the amount of compensation. For example if the Tribunal has taken into consideration the amount of pension payable to the deceased on his retirement and the contribution to be made by him for the benefit of his wife and children for the entire remainder of his life, then the amount of family pension may be reasonably deducted. Where, however, the Tribunal has not considered such benefits, i.e. probable increments to the deceased in salary and dearness allowance, prospects of his possibility of useful employment after retirement as in the instant case, deduction on account of family pension paid to the widow and other dependents cannot be made. In the instant case, therefore, we hold that the family pension paid to the widow and the legal representatives of the deceased was not deductible.
26. Last item of deduction is the ex gratia payment made by the State to the widow. S.L. Parmar (C.W. 7), an employee of the Industries Department where the deceased was in service, stated on the basis of record that Rs. 4,400 were paid ex gratia to the widow. Payment of ex gratia amount is a condition of the contract of service and it is payable only on the death of the employee. It is not a voluntary payment on charitable grounds 'on the occasion of the death' but is an advantage 'by reason of the death'. This amount cannot be claimed by the dependent unless death of the employee has occurred. This amount was, therefore, deductible from the amount of compensation.
27. It was lastly cohtended that in any case acceleration of the interest in the estate of the deceased necessitated some deduction from the amount of insurance, provident fund, gratuity and family pension) received by the claimants. Even if this argument is accepted, it is difficult to measure mathematically the value of such acceleration of interest. In Whittome v. Coates, ((1965) 3 All ER 268), this difficulty was noted and solved by holding that 'the total sum to be awarded should be assessed at a round figure rather than a figure based on actuarial calculation'. The value of acceleration thus, cannot be determined except by some actuarial calculation which has been disapproved in Whit-tome's case.
28. It is to be kept in mind that usually the method of assessing compensation is to determine the annual dependency and apply a multiplier, which is generally less than the years of the remaining life of the deceased. Then further deductions are made on account of lump sum payment, uncertainty of life and other imponderables. These deductions take care of the value of the acceleration of interest in the estate of the deceased and no further deduction is necessary on this count.
29. As already observed the Tribunal in the instant case did not take into account the probable benefits of the deceased for the remainder portion of his life, for example, his increment in salary and dearness allowance, chances of promotion, amount of pension and possibility of useful employment after retirement. Thus whatever benefit the legal representatives got as a result of the acceleration of the interest in the estate, it was set off by the loss of probable benefits which they would have received had the deceased lived his full span of life.
30. In the light of the discussion above we hold that out of the total amount determined as compensation payable to the claimants, no deduction except the amount of ex gratia payment should have been made. Decisions of this Court in Sushiladevi's ease (AIR 1974 Madh Pra 181) (supra); Government of M. P. v. Shamin Khan (deduction of family pension and gratuity), (1981-2 MPWN 128); Chamelibai v. Chhotekhan, (1981-1 MPWN 215) (deduction of insurance amount) and of other Courts cited earlier, so far as they take a different view, with respect, do not state the correct law.
31. We, therefore, partly allow the claimants' appeal and award a sum of Rs. 27,600 as compensation to the claimants. The amount will be apportioned as follows among the claimants:--
1. Rs. 15,000 to the widow, Smt. Kashmiran Mathur with proportionate interest.
2. Rs. 5,000 each to the daughters, Ku. Kumkum Mathur and Ku. Mirja Mathur with proportionate interest.
3. Rs. 2,600 to son Dilipkumar Mathur who as the evidence discloses is already self-employed in business with proportionate interest.
The claimants-appellants shall be entitled to costs with counsel's fee Rs. 200, if certified and interest on the decretal sum at 6% per annum from the date of the application till recovery.
32. We also partly allow Rajendrasingh's appeal in so far as the liability of the Insurance Company will be jointly liable to pay the entire decretal amount. Parties shall, however, bear their own costs of this appeal.
Sohani, J.
33. We have had the advantage of reading the judgment prepared by our learned brother Shukla, J. We agree with the conclusions reached by him in paras 31 and 32 of the judgment, but we would prefer to give our own reasons.
34. The facts giving rise to these appeals have been set out in the judgment of our learned brother. Two questions arise for consideration in these appeals. First whether any pecuniary benefit accruing to the dependent of a deceased person in consequence of the death of the deceased should be taken into account by a Tribunal constituted under the provisions of Section 110 of the Motor Vehicles Act, 1939, while awarding compensation? Secondly, if the answer to the first question is in the affirmative, then what are these benefits that should be taken into account?
35. The answer to the first question will depend on the answer to the question as to what is the law which a Tribunal must follow in awarding compensation under Section 110-B of the Act. In New India Insurance Co. Ltd. v Smt. Shanti Mishra (AIR 1976 Sc 237), the Supreme Court had occasion to consider the question about the nature of the change in the law brought about by the amending Act of 1956, introducing Sections 110 to 110-F in the Motor Vehicles Act. The Supreme Court held that the change in the law was merely a change of forum, i.e. a change of adjectival or procedural law and not of substantive law. The Supreme Court observed that the underlying principle of the change of law brought about by the amendment in the year 1956 was to enable the claimants to have a cheap remedy of approaching the Claims Tribunal on payment of a nominal court-fee, whereas a large amount of ad valorem court-fee was required to be paid in civil Courts. In view of the decision of the Supreme Court in AIR 1976 SC 237 (supra), it is no longer permissible to hold that the power of a Tribunal awarding compensation under Section 110-B of the Motor Vehicles Act to the dependants of a deceased is wider than the power, which a Civil Court exercised while awarding compensation under the Fatal Accidents Act, 1855. In our opinion, a Claims Tribunal inquiring into a claim for compensation under Section 110-B of the Motor Vehicles Act in respect of a fatal accident arising out of the use of a motor vehicle is bound to apply the law, as contained in the Fatal Accidents Act, 1855.
36. It was urged that the Courts should take note of the changes in law that have taken place in other countries to meet modern needs. In our opinion, that is the function of the legislature. It is for the legislature to take note of the fact that the balancing principle enunciated by Courts in England under the Fatal Accidents Act, 1846 and approved by the Supreme Court as we shall presently show, has been so seriously eroded by subsequent legislation to England that today little remained of it. It is also for the legislature to take note of the fact that there is a growing feeling that compensation for injuries caused by motor vehicles should be based on the no-fault principles. No fault schemes are in vogue in Australia, Canada and the United States. A comprehensive scheme, which covers victims of all accidents is in force in New Zealand (see 96 Law Quarterly Review p. 581). To consider whether there should be a no-fault scheme for road accident victims, in Britain, a Royal Commission (Pearson Commission) was set up. In the article 'A no-fault scheme for road accident victims in the United Kingdom' written by Prof. Trindade in 96 Law Quarterly Review, the learned author has observed at page 582 as follows:--
'Not only are too few victims compensated, the entitlement to tort compensation, as we have known for some time, depends too much on chance. The Commission were convinced that the fault principle operates with particular capriciousness'. The 'Forensic lottery' had become 'a lunatic lottery and an absurd system for providing compensation for any one'.'
In spite of this modern trend to award compensation on the no-fault principle, on the assumption that the powers of a Tribunal under Section 110-B of the Act are wide enough to give recognition to a principle which is just, we doubt whether Courts in India can give recognition to it in absence of legislation to that effect. That is why the Supreme Court has repeatedly expressed its dissatisfaction with the prevailing state of law. We may usefully reproduce the following observations of the Supreme Court in Bishan Devi v. Sirbaksh Singh (AIR 1979 SC 1862) (at p. 1866):--
'We may point out that repeated suggestions have been made by this Court and several High Courts expressing the desirability of bringing a social insurance, which would provide for direct payment to the dependant of the victim. This Court in Minu B. Mehta v. Balkrishna Ramchandra, 1977 ACJ 118: (AIR 1977 SC 1248), has referred to the decision of the Kerala High Court in Kesavan Nair v. State Insurance Officer, 1971 ACJ 219, where the High Court expressed itself thus:
'Out of a sense of humanity and having due regard to the handicap of the innocent victim in establishing the negligence of the operator of the vehicle a blanket liability must be cast on the insurers.'
The unhappy state, into which this part of the law has fallen, can only be corrected by legislation because courts have to keep in mind the distinction between exposition and legislation. In our country, law reform in the matter of award of compensation in cases of injuries or fatal accidents caused by motor vehicles is overdue and would be most welcome. But, at present, we are bound to administer the law regarding damages for death according to the legislation in force. Sections 110 to 110-F of the Motor Vehicles Act, in our opinion, have not brought about any reform affecting the basis or extent of liability and we have, therefore, to turn to the provisions of the Fatal Accidents Act, 1855, without taking into consideration the reforms brought about in England or in other countries, for deciding the amount of compensation payable to the dependants of the deceased in the case of a fatal accident caused by a motor vehicle. We approve the decision of Division Bench of this Court in Kamla Devi v. Kishanchand, (1970 MPLJ 273) : (AIR 1970 Madh Pra 168), in this behalf, which has been followed by another Division Bench of this Court in State of Madhya Pradesh v. Pehlajrai Dwarkadas (1976 MPLJ 317) : (AIR 1976 Madh Pra 208). The observation to the contrary in another Division Bench of this Court in Smt. Gulab Devi Sohaney v. Govt. of Madhya Pradesh (AIR 1971 Madh Pra 113) which has not taken note of the decision in 1970 MPLJ 273 : (AIR 1970 Madh Pra 168) (supra), cannot be held to lay down the correct law especially in view of the decision of the Supreme Court in AIR 1976 SC 237 (supra).
37. Now, as regards the provisions of the Fatal Accidents Act, 1855, we have decisions of the Supreme Court giving recognition to the balancing principle enunciated by the House of Lords in Davies v. Powell Duffryn Associated Collieries Ltd. (1942 AC 601). In Gobald Motor Service Ltd., Allahabad v. R.M.A. Veluswami (AIR 1962 SC 1), the Supreme Court observed as follows (at p. 6):--
'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 benefit and on the other any pecuniary advantage, which from whatever source comes to them by reasons of the death, that is, the balance of loss and gain to a dependant by the death, must be ascertained.''
The same general principle is reiterated by the Supreme Court in Shaikhupura Transport Co. Ltd. v. Northern India Transporters Insurance Co. Ltd. (AIR 1971 SC 1624). It is true that in that case, the Supreme Court did not decide the question as to whether compensation under Section 110-B of the Motor Vehicles Act, had to be fixed on the same basis as was required to be done under the Fatal Accidents Act, 1855. But the Supreme Court observed as follows (at p. 1626):--
'Under Section 110-B of the Motor Vehicles Act, 1939, the Tribunal is required to fix such compensation, which appears to it to be just. The power given to the Tribunal in the matter of fixing compensation under that provision is wide. Even if we assume (we do not propose to decide that question in this case) that compensation under that provision has to be fixed on the same basis as is required to be done under Fatal Accidents Act, 1855 (Act 13 of 1855), the pecuniary loss to the aggrieved party would depend upon data, which cannot be ascertained accurately but must necessarily be an estimate or even partly a conjecture. 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 benefit and on the other, any pecuniary advantage which from whatever sources come to them by reason of the death that is, the balance of loss and gain to a dependant by the death must be ascertained.'
38. The aforesaid general principle enunciated by the Supreme Court is, in our opinion, not on the assumption that, compensation had to be fixed under the Fatal Accidents Act. The Supreme Court held that irrespective of the question as to whether compensation to be awarded by the Tribunal under the Motor Vehicles Act should or should not be on the same basis as is required to be done under the Fatal Accidents Act, 1855, the aforesaid principle was the 'General' principle, meaning thereby that the applicability of that principle was not limited to cases where compensation was required to be fixed under the Fatal Accidents Act, 1855. It is also true that in the aforesaid decisions of the Supreme Court, the question for consideration was not about deductions to be made from the amount of compensation assessed. But the Supreme Court has given recognition to the balancing principle, while considering the question of compensation under the Fatal Accidents Act, 1855 and that view of the Supreme Court, in our opinion, is binding on us. It must therefore, be held that pecuniary advantage accruing to the claimants, from whatever source, by reason of death, has to be taken into account while awarding compensation by a Tribunal under Section 110-B of the Motor Vehicles Act.
39. That bring us to the consideration of the second question as to what are those pecuniary advantages for which deduction should be made from the amount of compensation assessed by the Tribunal. No Supreme Court decision in that behalf was pointed out to us. In a Division Bench decision of this Court reported in Chaurasia & Co. v. Smt. Pramila Rao (1974 MPLJ 781) : (AIR 1975 Madh Pra 31), there is an observation that any insurance money, benefit, pension or gratuity must be brought into account in the award of damages but there is no elaborate discussion on this point. In Sushila Devi v. Ibrahim (1974 MPLJ 168) : (AIR 1974 Madh Pra 181), to which one of us (Sohani J.) was a party. It was held that sums payable on death under any contract of social assurance or insurance were to be disregarded but the reasonable prospect of receiving benefits, such as compulsory employees' insurance, whether contributory or non-contributory, gratuity and pension, had to be taken into account. This conclusion was arrived at on the basis of some decisions of the Courts in England, I must confess that in that case, the matter was not fully argued at the Bar. In this case, we have had the advantage of receiving assistance not only from the learned counsel appearing for the parties, but also from Shri G.M. Chaphekar and Shri P.K. Saxena, the learned counsel, who at our suggestion, argued the matter as amicus curiae. We are grateful to them for their assistance.
41. In our country, as our learned brother Shukla J. has pointed out, decisions of various High Courts on this vexed question are not uniform. It is not easy to extract from decisions any test, which has been universally applied nor is it possible to discover from them any established principle. Moreover, facts in such cases are bound to be so infinitely various that all that can be reasonably attempted is to try to evolve some broad tests for giving effect to the balancing principle propounded by the Supreme Court, which a Claims Tribunal is required to follow in awarding compensation, which would be just to all the parties concerned.
41. Having given our anxious consideration to the matter in the light of the various decisions having a bearing on the question for our consideration, we may now proceed to set out the broad tests applicable in such cases. It can be taken to be well settled that the onus is on the defendant to show that any pecuniary benefit or reasonable expectation of pecuniary benefit to the relatives of the deceased resulting from the death of the deceased should be taken into account in reduction of damages, which should be awarded to compensate the recipient on a balance of gains and losses for the injury sustained by them by reason of death due to accident. It has also to be noted that the damages to be awarded to the claimants are compensation and not punitive. Therefore, the test that no advantage should accrue to a wrongdoer would not, in our opinion, be relevant whale considering the question of compensation. In such cases, after ascertaining the loss to the claimants of the future pecuniary benefits, the Claims Tribunal has to ascertain whether the defendant has been able to make out that any pecuniary advantage from any source has come to the claimants by reason of the death.
42. Now it may be that on account of death of the deceased, the claimants have become entitled to the estate of the deceased by inheritance or under a will or settlement. It may be that under a contract made by the deceased with an insurance company, the claimants have become entitled to receive some amount. In such cases, where claimants receive a benefit on the death of the deceased, though death by accident was the occasion which made the claimants recipient of those benefits, the claimants would nevertheless have received those benefits at some point of time in future because death of the. deceased was an event, which was certain. Death of the deceased by accident has merely accelerated the receipt of benefits, which the claimants would have, in any case, received at some future date. In such cases, pecuniary benefits come to the claimants not by reason of the death in question, i.e. death due to accident. The pecuniary advantages received by the claimants in such cases by reason of death, is the advantage gained by acceleration of their interest. Now the question for consideration is whether that advantage has to be taken note of while awarding compensation. It may, how ever, be noted that the extent of loss sustained by the claimants is based on data, which cannot be ascertained with certainty and is necessarily a matter of estimate and conjecture. After ascertaining the annual dependency, the multiplier selected is not equal to the remainder of the working life of the deceased. It is much less taking into account the uncertainties of life. Under these circumstances, it can be held that the selection of a multiplier normally takes care of the acceleration of the interest of the claimants in the benefits, which they have received on death of the deceased, unless in any particular case, material is brought on record to show that the acceleration of interest of the claimants is not taken care of in selecting the multiplier in that case. The burden to prove this fact would be on the defendant and in the absence of any material on record, it must be held that no deduction on account of acceleration of interest of the claimants is necessary.
43. In some cases, however, the benefits received by the claimants are directly attributable to the death of the deceased by accident. If these benefits are received from an employer of the de-ceased, then in that event, the pecuniary advantages may be held to have come to the claimants by reason of death. If, however, those benefits are shown to have been received merely out of consideration for these claimants, as in the case of contributions by co-workers of the deceased, actuated by a desire to relieve the needs of the widow on orphaned children of the deceased, then in such a case the claimants cannot be held to have received these benefits, merely by reason of death of the deceased. The source of such benefits can legitimately be traced to considerations personal to the claimants. Lastly, if there is any doubt as to whether the balancing principle extends to any class of benefit not directly covered by any binding authority, the doubt has to be resolved in favour of the claimants inasmuch as in such a case the defendant must be held to have failed to discharge the burden placed on him to justify such deduction.
44. These, then in our opinion, are the broad principles in the light of which the balancing principle has to be applied to the facts of each case. Decisions of this Court taking a contrary view, do not, in our opinion, as held by our learned brother Shukla J. state the law correctly.
45. As pointed out by our learned brother Shukla J. the defendants in the instant case have failed to make out a case for deduction of any amount other than the amount of ex gratia payment made by the employer of the deceased.We, therefore, concur with the order proposed by our brother Shukla, J. By Order of the Court:--
46. We, therefore, partly allow the claimants' Appeal MA 123/78 and award a sum of Rs. 27,600 as compensation to the claimants. The amount will be apportioned as follows among the claimants:--
(1) Rs. 15.000/- to the widow, Smt Kashmiran Mathur, with proportionate interest.
(2) Rs. 5,000/- each to the daughters. Ku, Kumkum Mathur and Ku. Nirja Mathur, with proportionate interest.
(3) Rs. 2,600/- to son Dilipkumar Mathur, who, as the evidence disclosed, is already self-employed in business, with proportionate interest. The claimants-appellants shall be entitled to costs with counsel's fee Rs. 200 (Two hundred), if certified, and interest on the decretal sum at 6 per cent Per annum from the date of the application till recovery.
47. We also partly allow Rajendrasingh's Appeal MA 122/78 in so far as the liability of the Insurance Company will be jointly liable to pay the entire decretal amount Parties shall bear their own costs of this appeal.