Varghese Kalliath, J.
1. This is a phenomenal case. Appeal is against a judgment in O.P. (MV) No. 305 of 1986 under Section 110-A of the Motor Vehicles Act, hereinafter referred to as 'the Act'. It is phenomenal, since the victim in the case is the owner of the vehicle itself. Not only this fact makes the case phenomenal but the legal representatives of the deceased got an award of compensation on the basis that the owner of the vehicle, under strange circumstances, met with a motor accident with his own vehicle, which has taken his life. Now, we shall briefly state the facts of the case.
2. Respondent Nos. 1 to 3 in the appeal are the applicants in the application for compensation before the Motor Accidents Claims Tribunal, Kottayam. The unfortunate event happened on 10.12.1985 at about 11 a.m. Respondent Nos. 1 to 3 herein are the claimants, the widow and minor children of the deceased. 4th respondent is the person who drove the vehicle, which caused the accident. 5th respondent is the insurance company. Appellant herein is a company engaged in the repairing and servicing of motor vehicles. The vehicle in question is a stage carriage KRO 7200. The bus belonged to the deceased. It was taken by him on hire-purchase from M.G.F. (India) Ltd. The vehicle was brought to the garage of the appellant for servicing.
3. The process of servicing was carried on by the workers engaged by the appellant. The husband of the first respondent herein was in the garage. He was talking with some persons. 4th respondent herein was on the driver's seat of KRO 7200. He started the engine and suddenly the bus moved backwards and it hit the compound wall on the western side of the garage. The husband of the first respondent who was leaning to the side of another bus was struck by the left side of the bus KRO 7200 and in fact, he was sandwiched between the bus and the western wall. 4th respondent, Rajagopalan Nair, escaped running away from the scene.
4. The employees of the garage and others, after pushing back the bus, extricated the injured person (husband of the first respondent) and he was taken to the Medical College Hospital, Kottayam. The injury sustained by him was serious. Since it was an internal injury of the lungs, he was subjected to an operation, but, he succumbed to the injury on 11.12.1985. The husband of the first respondent was aged only 38 years. According to respondent Nos. 1 to 3, the deceased was earning about Rs. 10,000/- per month by operating the bus service from Kottayam to Payyappadi. The widow and children claimed a total compensation of Rs. 4,00,000/- under different heads.
5. Several contentions were taken by the appellant including the contention that the Tribunal has no jurisdiction to try the case. The quantum was also disputed. Their liability to pay the amount was also seriously contested. Further, it was contended that in case the appellant is found liable to pay any compensation, the Tribunal should direct the insurance company to pay the amount.
6. The Tribunal very elaborately considered all the points raised before it. It held that the Tribunal has got the jurisdiction to try the case. It found that the appellant is liable to pay the compensation. It fixed the total compensation at Rs. 1,61,760/- with future interest at 12 per cent per annum. It also held that the insurance company is not liable to pay the compensation amount. Naturally, the appellant is aggrieved by the award of the Tribunal. It appeals.
7. Respondent Nos. 1 to 3 have challenged the quantum of compensation and filed a cross-objection.
8. The court is called upon to consider the following points:
(i) Whether on the facts and circumstances disclosed from the evidence, the Tribunal has got jurisdiction to try the case?
(ii) Whether the Tribunal is right in holding that the appellant is liable to pay the compensation?
(iii) Whether the quantum of compensation fixed by the Tribunal is justifiable or adequate?
(iv) Whether the Tribunal erred in declining to direct the insurance company to pay the compensation found to be payable to respondents?
9. Before considering the first question, viz., whether the Tribunal has got jurisdiction on the basis of the power source of the Tribunal under the statute, viz., Section 110 of the Act, we feel that we must be fully informed about the legal status of the appellant in relation to the vehicle of the deceased.
10. Admittedly, the vehicle was in the custody of the appellant and that custody was that of a bailee. Section 148 of the Indian Contract Act, defines bailment. Bailment is the delivery of goods by one person to another for some purpose, upon a contract that they shall when the purpose is accomplished be returned or otherwise disposed of according to the directions of the person delivering them. The person delivering the goods is called the bailor. The person to whom they are delivered is called the bailee. The obligation and responsibility of a bailee are delineated in Section 151 of the Indian Contract Act and it postulates that in all cases of bailment, the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of same bulk, quality and value as the goods bailed. For all intents and purposes as long as the contract of bailment continues, there is nothing wrong in deeming the bailee as the owner of the goods bailed. We will consider the effect of a motor accident caused by the employee of the bailee in greater detail later, after considering the question whether the legal representatives of the deceased are entitled to maintain an action against the appellant herein for compensation under the Act.
11. It was contended that considering the facts revealed in the case, the Tribunal has no jurisdiction to entertain an application under Section 110-A of the Act. In this context, we have to understand the scope and width of Section 110-A. Section 110-A provides for filing an application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 110. Section 110-A further denominates the persons who can make the application under Section 110-A Clause (b) of Section 110-A provides 'where death has resulted from the accident, by all or any of the legal representatives of the deceased'. Of course, Section 110-A also makes provision regarding the form of the application, the contents of the application and the time within which the application has to be filed. The fundamental requirement to attract Section 110-A is that the compensation should be claimed on account of 'an accident' of the nature specified in Sub-section (1) of Section 110. The Tribunal can entertain an application only if it relates to an accident of the nature specified in Sub-section (1) of Section 110. So, naturally, we have to consider the nature, scope and content of Sub-section (1) of Section 110. In fact, the power source of the Claims Tribunal is Section 110. We shall quote Section 110(1) in extenso.
110. Claims Tribunals.-(1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereinafter referred to as Claims Tribunals) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both:
Provided that where such claim includes a claim for compensation in respect of damage to property exceeding rupees two thousand, the claimant may, at his option, refer the claim to a civil court for adjudication and where a reference is so made, the Claims Tribunal shall have no jurisdiction to entertain any question relating to such claim.
Explanation.-For the removal of doubts, it is hereby declared that the expression 'claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles' includes claims for compensation under Section 92-A
12. As far as the chief question that has to be decided in the case for the purpose of determining whether the application is maintainable before the Tribunal we feel that the key words to be considered in Section 110(1) of the Act are 'claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles' (emphasis added). The Tribunal is given the power to adjudicate claims for compensation arising out of the use of motor vehicles. The legislature, through Section 110(1) of the Act, has conferred that power on the Tribunals and the Tribunals' power is restricted only to claims arising out of the use of motor vehicles. No other restrictions are imposed by the legislature particularly, for the purpose of the case, we may say no restriction as to the class of victims of the accident. 'The Claims Tribunal is a Tribunal constituted by the State Government for expeditious disposal of the motor accident claims. The general law applicable is only common law and the law of Torts. If under the law a person becomes legally liable then the person suffering the injuries is entitled to be compensated and the Tribunal is authorised to determine the amount of compensation which appears to be just....Section 110(1) of the Act empowers the State Government to constitute one or more Motor Accidents Claims Tribunals for such area as may be specified for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of or bodily injury to persons. The power is optional and the State Government may not constitute a Claims Tribunal for certain areas.' Vide Minu B. Mehta v. Balkrishna Ramchandra Nayan 1977 ACJ 118 (SC).
13. The Act does not create a new right or even a new remedy but has simply changed the forum and the process for adjudicating claims for compensation arising from accidents by the use of motor vehicles. Sections 110-A to 110-F of the Act merely deal with the change of forum and the process by the Claims Tribunal substituting the civil court and its process. On a reading of Sections 110 to 110-F of the Act, it is plain and clear that Motor Accidents Claims Tribunals when constituted would substitute the civil courts in the matter of adjudicating the question of compensation arising out of accidents due to use of motor vehicles. As we said earlier, Section 110(1) of the Act postulates accidents 'arising out of the use of motor vehicles'. Though the fundamental principle on which the liability is fastened can be traced to the law of Torts, many of the crucial aspects of that liability have been now made statutory by the Act. Even then the principles of law of Torts are relevant in the quantification of damages. We feel the word 'use' in Section 110(1) of the Act has been used in a wider sense. It covers all engagements of the motor vehicle, including driving, parking, keeping stationary, repairing, leaving unattended on the road or for any other purposes. In the case when a vehicle is being driven and is stopped or parked for being repaired, it cannot be said that the vehicle is not being used. [See General Manager, Karnataka State Road Trans. Corporation v. S. Satalingappa 1979 ACJ 452 (Karnataka) and KG. Swnant v. Shailendra Kumar 1980 ACJ 248 (MP)].
14. If the vehicle is parked on a dangerous slope and the accident is caused, we feel that Section 110 of the Act would be attracted. When by the opening of the door of a motor vehicle parked on a public road an accident arises, giving rise to a claim for compensation, it could not be said that the accident did not arise out of the use of the motor vehicle concerned. We feel that the words 'use of motor vehicles' in Section 110(1) of the Act are wide enough to comprehend such cases also.
15. Counsel for the appellant submitted that a reading of Section 110-B of the Act would suggest that the Tribunal has no jurisdiction to entertain an application for adjudication of compensation to be paid to the injured or to the legal representatives in a case of death of a person against persons other than the driver, owner or the insurer. It is contended that Section 110-B of the Act makes the jurisdiction of the Tribunal to be confined only against driver, owner or the insurer. A careful reading of Section 110-B of the Act would not permit such an interpretation. Section 110-B only mandates the Tribunal that an apportionment of the liability of the insurer, owner and driver of the vehicle involved in the accident has to be made.
16. In United India Insurance Co. Ltd. v. Premakumaran 1988 ACJ 597 (Kerala), a Division Bench of this court had occasion to consider this question relying on the decisions in Union of India v. Bhagwati Prasad 1983 ACJ 13 (Allahabad) and Dyer Meakin Breweries Ltd. v.Bimla Gupta 1986 ACJ 334 (Allahabad), [Sic. Rajpal Singh v. Union of India 1986 ACJ 344 (P&H;)] and distinguishing the decisions in Madan LalJain v. Municipal Corporation of Delhi 1982 ACJ 374 (Delhi) and Jyoti Prasad Dixit v. Bittan Devi 1986 ACJ 371 (Allahabad). Balakrishnan, J., has held that the adjudication of all claims for compensation in respect of the accident arising out of the use of motor vehicle is to be done by the Tribunal and that even though under Section 110-B the driver, owner and the insurer are mentioned, it does not curtail the power of the Tribunal to direct payment of compensation to the injured or the legal heirs of the deceased by any person who caused the accident involving the use of the motor vehicle which resulted in death of or injuries to persons claiming compensation.
17. The same view is expressed in Union of India v. Sushila Devi 1990 ACJ 1 (Allahabad), wherein the court held that 'the Claims Tribunal is not confined in its jurisdiction to claims for compensation which are directed only against the driver, owner and insurer of the vehicle. Where the claim is founded on the assertion that the accident was caused by, apart from the use of the motor vehicle, some third party, the Tribunal shall undoubtedly have jurisdiction to entertain the claim even though it is directed against a third party'. The crucial aspect to be looked into in deciding the question of jurisdiction, we feel, is that the claim must be in respect of accidents involving the death of or bodily injury to persons caused or contributed by the use of motor vehicle whether wholly or conjointly with some third party. Section 110-B of the Act, we feel, will not militate the view we have expressed above. We may also refer to Section 110-F of the Act, which clearly states that no civil court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal.
18. In Rajpal Singh v. Union of India 1986 ACJ 344 (P&H;), a Full Bench of the Punjab & Haryana High Court had occasion to consider the question of the width of the jurisdiction under Section 110 of the Act. The case considered by the Full Bench was a claim petition filed for compensation for personal injuries and damages caused to the applicant's car dismissed by the Tribunal on a preliminary objection that it has no jurisdiction to entertain the same. The accident occurred when the claimant was crossing a railway gate. A train struck against the car and it is alleged that the engine was without light. The railway crossing gate was lying open and there was no red light to stop traffic. It was pleaded that the accident occurred due to the negligence and carelessness of the railway authorities including the driver of the train and gateman. The appeal against the dismissal of the application was confirmed by the majority judgment. S.P. Goyal, J., speaking for the Full Bench, came to the conclusion that the claim was against the railway authorities alone alleging that the accident took place entirely due to their carelessness and negligence and that of the driver of the train and the gateman. There being no allegation that the motor vehicle in any way contributed to the cause of the accident, it cannot be said that the same had arisen out of the use of the motor vehicle. It is difficult for us to agree with this reasoning. If the motor vehicle was not used or was not driven, there was no possibility of an accident at all. So the accident has arisen out of the use of the motor vehicle.
19. In a case where the accident occurs solely on account of the negligence of a bullock-cart driver or handcart driver, it will be none the less an accident arising out of the use of the motor vehicle. In fact Section 110 of the Act does not refer to the question of whose negligence caused the accident. The emphasis is given only to the use of the motor vehicle for the purpose of attracting the jurisdiction of the Claims Tribunal. The minority judgment by Tewatia, J., has considered all the aspects of the matter. The learned Judge observed [quoting from 1983 ACJ 13 (Allahabad) para 12]:
The words 'in respect of accidents... arising out of the use of motor vehicles occurring in Section 110(1) are words of the widest possible amplitude. We see no reason either on the plain language of Section 110 or in any other allied provisions or the scheme of the Act as manifested by the relevant provisions, which may have inhibited or barred the jurisdiction of the Claims Tribunal to entertain an application for compensation in respect of third parties, in the present case, the railway.
20. Really speaking, the jurisdiction for a complete adjudication of all the claims for compensation in respect of accident occasioned on the use of the motor vehicle was called out from the general jurisdiction of the different and varied tortious actions which would enable parties to seek relief for compensation in ordinary courts in regard to accidents arising out of the use of motor vehicles and entrusted under Section 110 of the Act with the Motor Accidents Claims Tribunal. A complete adjudication of all the claims for compensation in such circumstances is absolutely necessary. Then alone, the statute will be effective and so, unless all the parties involved in the accident are arrayed as opposite parties before the same forum and heard on the question of negligence, the matter cannot be properly and effectively disposed of. Otherwise, even in respect of accidents arising out of the use of motor vehicles, it will be only a truncated jurisdiction before the Claims Tribunal. We feel that this cannot be the intention of the legislature. We respectfully disagree with the majority decision in Rajpal Singh v. Union of India 1986 ACJ 344 (P&H;).
21. The discussions we have made above, we feel, would make it clear that the submission made by counsel for appellant that the application is not maintainable is devoid of any merit.
22. Of course, we have to deal with a subsidiary point raised by counsel for the appellant that the jurisdiction of the Tribunal is attracted only if the accident involving the motor vehicle should have happened in a public place. To substantiate this contention, counsel referred us to Section 95 of the Act. We shall examine the sustainability of the submission.
23. We have to bear in mind the intendment of Section 95 when we examine the correctness of the submission made by counsel for the appellant. The intention of the legislature to introduce Section 95 of the Act has to be understood in the light of Section 94 of the Act. Section 94 of the Act was introduced when the legislature felt the necessity for insurance against third party risk. It is to ensure that third parties who suffer due to user of motor vehicles should be able to get damages and recoverability of the damages should not depend upon the financial condition of the driver or owner of the vehicle who caused the accident and so, Section 94 of the Act obliged the owner of a motor vehicle to keep it insured.
24. In dealing with the necessity for insurance against third party risk, of course, the statute provides that no persons shall use except as a passenger or cause or allow any other person to use a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of Chapter VIII of Act 4 of 1939. The statute mandates the necessity for a valid policy in force in regard to the motor vehicle if it is intended or used in a public place. Section 95 of the Act which deals with the requirements of policy and limits of liability also uses the words 'arising out of the use of the vehicle in a public place' but it is significant to note that in dealing with the jurisdiction of the Tribunal under Section 110(1) the statute does not make it a condition that the accident should occur by the use of the motor vehicle in a public place. Section 92-A of the Act is indicative of the fact that liability to pay compensation arising out of the use of a motor vehicle need not be the use of the motor vehicle in a public place.
25. We shall also consider along with the question of the width of term 'public place' the question of insurance company's liability. That has to be answered with reference to Sections 94 and 95 of the Act. As per Section 95(1)(b) of the Act, insurer is liable to pay compensation to the extent specified in Sub-section (2) of Section 95 of the Act for the death of or bodily injury to any person or damage to any property of a third party if the same is caused by or arises out of the use of the insured vehicle in a public place. Section 2(24) of the Act defines what is public place. It means a road, street, way or other place, whether a thoroughfare or not to which the public have a right of access and includes any place or stand at which passengers are picked up or set down by a stage carriage. Admittedly, in this case the accident took place not in a road, street or way. If at all, it can be considered as a public place, it can only be a place to which the public have a right of access. In order to attract this part of definition, it must be proved that the public have a right of access to that place. It is not enough that as a matter of fact the public have access. Vide Rajammal v. Associated Transport Company 1970 ACJ 44 (Madras). Even where access to particular road or place is permissive, it cannot be said that public have a right of access to such road or place. Hence such road or place cannot be regarded as public place. Vide Taxi Drivers Union v. Kerala State Road Transport Corporation 1982 KLT 468. In Sardul Singh v. Kalloobai 1981 ACJ 343 (MP), the Madhya Pradesh High Court has held that service station premises is not a public place.
26. We do not propose to give in this case a final verdict as to the question whether the premises of the service station is a public place within the meaning of the definition of public place in the Act. The phrase 'right of access' mentioned in the definition of public place has to be given a meaningful interpretation, taking into account the purpose of the legislation. The general principle now accepted in regard to question of interpretation is purposive interpretation as against the literal interpretation. In this case, apart from the fact that the insurance company can put forward a defence that the accident took place not in a public place, there can be a valid defence for the insurance company to get itself exonerated from the liability on the ground that the contract of insurance is a contract of indemnity and by the insurance policy, the company has undertaken to indemnify the loss that would have been occasioned to the owner, in case he is compelled to pay damages on account of the accident. Certainly, in this case the owner who is the victim is not compelled to pay compensation to the legal representatives of the victim and so, there is no question of indemnifying the insured and so, the insurance company is not in any way liable to pay compensation that has to be awarded in this case.
27. We have said that the liability to pay compensation is a liability under the general law of Torts. We have already determined in paragraph 10 the status of the appellant in this case as that of a bailee. What happened is clear. An employee of the bailee caused the accident by his negligence. Allowing the employees to sit in the driver's seat also is an act of imprudence and negligence on the part of the appellant. If the accident has occurred in the same way as it has occurred in this case and if the victim is not the owner of the vehicle, but a stranger, it will be difficult for the bailee to say that he is not liable for compensation. Perhaps, that stranger victim may have a cause of action against the owner of the vehicle also. If circumstances are brought out to fasten liability on the owner of the vehicle or in case the owner fails to get himself extricated from the liability on the basis of exceptions that can be claimed when the accident has occurred on account of the negligence of the bailee both the owner and the bailee may be liable to pay compensation to the injured or legal representatives of the deceased. Anyhow, in general law it is not difficult to find liability for the negligence of the person who was on the driver's seat. There is no dispute that the person who was on the driver's seat, was solely responsible for the accident and that he was the employee of the appellant. We have no hesitation to hold that the person who actually caused the accident by his negligence has no defence to escape liability to pay compensation. He is bound to account for his negligence. If the person who is primarily bound to account for the negligence is the employee of the appellant, the appellant is also vicariously liable to account for the negligence of his employee.
28. There are decisions to the effect which would show that the bailee's sole interest is essentially possessory and it is demonstrated by his ability to recover for injury to the goods without proof of personal loss against a stranger and is consistent with the principles of bailment generally. A right to immediate possession is better characterised as generating a constructive rather than an actual possession.
29. In Mangan v. Leary (1877) 3 NZ Jur (NS) CA 10 at 16 per Gillies, J. said:
Until I heard Mr. Macassey's able and ingenious argument, it never occurred to me to doubt that the law is that either bailee or bailor may sue a wrongdoer for the entire damage done to the chattel bailed. And after careful consideration of the argument and examination of the authorities, I adhere to my previous opinion.
There is no dispute that a bailee's possession is a prerequisite or to which it is one of several grounds of potential qualification. His lack of full ownership does not preclude him from recovering the full value of the chattel or the full cost of its impairment; the rule in such circumstances is that 'as against a wrongdoer, possession is title', Vide The Winkfield, (1902) p. 42 at 60 and Bailment by Palmer, 1979 Edn., p. 177.
30. Palmer in his book Bailment says:
It was only in the present century that the bailee's rights of action against a wrongdoer were finally established, although decisions granting him an action in trover for full value of the goods can be traced from the beginning of the 19th century. It was at first unclear whether his use of this or any remedy was conditional upon his liability to the bailor; if it were not, he would stand to recover more than he had lost, while the wrongdoer would be forfeiting more than the extent of his immediate damage.
31. We have considered now only the bailee's right to recover damages from a wrongdoer in regard to the goods bailed. But the question that has to be focussed is the liability of bailee to third parties. Again we rely on Bailment by Palmer at p. 966. Referring to decided cases, the learned author has epitomized the rule thus:
The bailee's responsibility for injury or loss inflicted upon a stranger to the bailment by the chattel is a simple facet of the ordinary law of negligence or trespass and does not necessitate exhaustive discussion. He will be liable if, through the negligent misuse of the chattel by himself or his servants acting in the course of their employment, a third party is foresee-ably injured or property is foreseeably damaged.
We feel that the appellant whose status is that of a bailee, in the circumstances, is accountable for the negligence of his employee. So, necessarily, we have to hold that the appellant is liable to pay compensation to the claimants.
32. Now, we have answered the points regarding jurisdiction and other question of law against the appellant and the question of the liability to pay compensation by the insurer in favour of the insurance company. So we have to dismiss the appeal, M.F.A. No. 175 of 1990. The appellant has challenged the quantum of compensation allowed by the Tribunal. The question of quantum of compensation we will be dealing when we deal with the cross-objection.
33. Now we have to consider the cross-objection filed by the claimants, we have upheld the finding that the first and second respondents are liable to pay compensation to the claimants, the petitioners in the cross-objection. The claimants have claimed a total amount of Rs. 4,00,000/- as compensation. By the award, the Tribunal determined a total compensation of Rs. 1,61,760/- with interest at 12 per cent per annum from 2.5.1986 till date of realisation and proportionate costs from respondent Nos. 1 and 2 in O.P. (MV) No. 305 of 1986. The claimants submit that the compensation awarded is inadequate, insufficient and not fair. Of course, in the matter of determining compensation, the court should approach the question on the basis that it must be fair and reasonable. The court is not expected to approach the problem as if the respondents are wrongdoers in the sense that they have to be penalised.
34. The petitioners in cross-objection claimed a total compensation of Rs. 4,00,000/-under different heads. In part I claimants wanted the compensation under three heads:
(i) Transport to and fromhospital Rs. 250/-(ii) Damage to clothing andarticles Rs. 250/-(iii) Funeral expenses Rs. 7,500/-
On the above three heads, the Tribunal allowed the first two claims in toto and for the third claim, viz., funeral expenses, the Tribunal allowed an amount of Rs. 1,500/-. Strictly speaking funeral expenses is not an item which can be claimed. This is on account of the fact that death is a certain event, though we cannot predicate when exactly it will happen and when it happens it is the duty of the living to bury the dead. But, in the case of death due to an accident as against the natural death, unforeseen expenses have to be incurred and there is nothing wrong in allowing a small amount under this head and that is what has been done in this case. The Tribunal has awarded only Rs. 1,500/-.
35. In part II, the claimants have claimed an amount of Rs. 25,000/- as compensation for pain and suffering, Rs. 25,000/- as compensation for loss of consortium to the 1st petitioner and Rs. 3,40,000/- as compensation for loss of income on account of death. The Tribunal awarded Rs. 5,000/- as compensation for pain and suffering of the deceased. The accident had occurred at about 2 p.m. At the time, when the victim was taken to the hospital, he was conscious. That is clear from the evidence of PW 1. The end came on 11.12.1985, at about 11 a.m. and considering the serious injury suffered by the victim which resulted in his death, the amount of Rs. 5,000/- as compensation for the pain and suffering of the deceased allowed by the Tribunal is only fair and reasonable and we confirm Tribunal's determination of compensation on this count.
36. Though in the petition Rs. 25,000/- is claimed for loss of consortium to the 1st claimant, there is no specific claim for the loss of filial affection and care for the two minor children. The deceased was aged only 38 years. He seems to be a successful businessman, who was conducting a bus service. The Tribunal has awarded only Rs. 5,000/- as compensation for loss of consortium to the 1st claimant. We feel that the amount awarded is inadequate. We are of opinion that in the circumstances of the case, the 1st claimant is entitled to an amount of Rs. 7,500/- for the loss of consortium and the children together are definitely entitled to an amount of Rs. 5,000/- for the loss of love and affection of their father.
37. There is no separate claim for loss of expectation of life, which is an allowable claim in determining compensation payable in the case of death on account of motor vehicle accident. Though there was no specific claim on this count, the Supreme Court has held that in the total claim made by the claimants if a legitimate count has not been specifically mentioned, the court is not precluded from allowing a reasonable amount under a legitimate count if by allowing, the total amount will not exceed the claim. We feel, in the circumstances, considering the age of the victim, the claimants are entitled to an amount of Rs. 5,000/- on account of the loss of expectation of the life of the deceased. Of course, the amount goes to the estate of the deceased and the estate naturally devolves on the legal representatives, who are the claimants before us.
38. Now we have to decide the question of loss of contribution to the claimants from the earnings that could have been made had the victim survived. This is the main claim. The claimants wanted under this count an amount of Rs. 3,40,000/-. The Tribunal found that the contribution that could have been given for the maintenance of the family by the deceased, if he had survived, is Rs. 960/-per month. The Tribunal has taken 960 as the multiplicand and applied 14 as the muliplier and calculated the amount at Rs. 1,61,280/-. From the said amount for the vicissitudes of life and for lump sum payment a deduction of 1/14th of the total amount has been effected by the Tribunal and found Rs. 1,49,760/- as the net amount. Though PW 1 has given evidence that her husband was earning Rs. 10,000/- per month for six months immediately prior to the accident, by conducting the bus service, the Tribunal did not accept this evidence and determined comparatively a low figure of Rs. 1,200/- stating that it would be a reasonable amount to be fixed as his monthly income. From the amount of Rs. 1,200/- the Tribunal deducted 1/5th for the personal expenses of the deceased and came to the conclusion that the contribution the deceased would have given for maintenance of his family as Rs. 960/- per month. In fixing the multiplier the Tribunal only said the deceased is aged 38. No other basis is given for determining the multiplier as 14. Considering the age of the deceased and the nature of the business the deceased was carrying on and the fact that the widow is aged only 38 at the time of filing the application and other two claimants who are minors aged 13 and 8, we feel that the multiplier adopted by the Tribunal is not justifiable. Further, it has to be remembered that the Supreme Court has said that the normal expectancy of the life of an Indian is 70. In view of all these facts, we feel that the multiplier, if it should be fair and reasonable, must be 20. Calculating on that basis, the total amount payable under this count will come to Rs. 2,30,400/-. Further taking into account that we have adopted the monthly contribution for the purpose of determining the compensation under this head as Rs. 960/- while the claim of the claimants is Rs. 10,000/- per month, which was attempted to be proved by producing Exh. A-9 we feel that for payment of the amount as a lump sum and the vicissitudes of life 1/6th of the total amount should be deducted. Deducting 1/6th of the total amount the net amount will come to Rs. 1,92,000/-.
39. In the result, the total amount of compensation payable is Rs. 1,92,000/- + Rs. 24,500/- (on other miscellaneous counts) i.e., Rs. 2,16,500/-. We allow the cross-objection and modify the award, directing respondent Nos. 1 and 2 in the application to be jointly and severally liable to pay an amount of Rs. 2,16,500/- with 12 per cent interest from the date of the filing of application till payment to the claimants. We apportion thus:
Rs. 75,000/- with interest at the rate of 12 per cent from the date of application till payment to the widow, the first claimant and Rs. 70,750/- with interest at the rate of 12 per cent to each of the minor children. If any amount has already been paid in this case, it has to be adjusted. The minor's share should be deposited in a nationalised bank for such period till the minors attain majority.