V.S. Deshpande, J.

(1) THESE are cross appeals under Section 110-D of the Motor Vehicles Act, 1939

as amended by Act 100 of 1956 (hereinafter called the Act) against the award of

compensation given under Section 110-B thereof by the Motor Accidents Claims

Tribunal, Delhi, (hereinafter called the Tribunal ). Appeal No. 89-D of 1965 is by the

claimants for enhancing the compensation awarded by the Tribunal, while Appeal

No. 89-D of 1965 is by the respondents for dismissing the claim for compensation

altogether or for reduction of the amount of compensation.

(2) ON 13-6-1963 a motor truck belonging to M/s Gopal Singh Ghanshyam Dass in

charge of the driver, Bakshi Ram, ran over and killed one Shri Ajit Singh on old

Rohtak Road, Delh. The truck was insured against third party risks with M/s

Vanguard. Insurance Company Ltd. Smt. Amarjit Kaur widow of the deceased Ajit

Singh, and their children applied to the Tribunal under Section 110-D of the Act for

award of compensation for the death of Ajit Singh alleging that it was due to the

rash and negligent driving of the motor truck. They said that the monthly income of

Ajit Singh at the time of his death was Rs. 1,200. 00 per month. The application was

resisted by the truck owners and the Insurance Company, who denied that the

death of Ajit Singh was caused by the negligence of the driver and alleged that the

negligence or contributory negligence of Ajit Singh himself was the cause of his

death. The tribunal found that the death of Ajit Singh was caused by the negligence

of the truck driver. In assessing the amount of compensation, the Tribunal held that

the net income of Ajit Singh at the time of his death was Rs. 750. 00 per month. Out

of this amount, Ajit Singh spent about Rs. 275. 00 per month on himself and for his

personal expenses. After the death of Shri Ajit Singh his legal representatives

derived an income of Rs. 300. 00 per month from his business, which has been

inherited by the legal representatives. Deducting these amounts from the net

income of Ajit Singh the net loss to the dependents by the death of Ajit Singh came

to Rs. 175. 00 per month. Ajit Singh probably would have lived far another 15 years

if he had not been killed. The total amount of the net loss spread over 15 years

would, therefore, come to Rs. 31,800. 00 This amount, which the claimants would

have got during the period of 15 years, if Ajit Singh had lived, was reduced by 10%

as the compensation was immediately payable to the claimants. The amount so

reduced came to Rs. 28,620. 00. Out of this amount Rs. 14,000. 00 were deducted

as the insurance money paid to the widow of the deceased, Rs. 5,000. 00 as the

value of the membership and part purchase of the Industrial plot by the deceased

and Rs. 1000. 00 as the amount received by the widow of the deceased from the

Chit Fund on the death of the deceased. Thus, a net compensation of Rs. 8,620. 00

only was awarded to the claimants by the Tribunal. The various points for decision

arising out of the argument of the learned counsels for both the sides may be dealt

with broadly under two headings:- (1) Was the death of Ajit Singh caused by the

negligence of the truck driver or was it caused by the negligence of Ajit Singh

himself or at any rate by the contributory negligence of Ajit Singh (2) Is the

amount of compensation awarded by the Tribunal liable to be enhanced or

reduced (1) The learned Tribunal carefully considered the whole evidence on

record and I am in full agreement with its finding that the accident was caused by

the negligence of the truck driver and that there was no contributory negligence on

the part of Ajit Singh. The facts disclosed in the evidence are as follows:

(3) THE truck was going initially by the left side of the road as required by the rule

of the road. It was found, however, that a bus was parked on the road in front of it.

It has, therefore, to over take the bus by going to the right side of the road. While

the truck was on the right side of the road, it struck the deceased Ajit Singh and

killed him on the spot. It was argued for the respondents that the truck was

compelled to go to the right side of the road to overtake the stationary bus, that it

sounded the horn before doing so and that Ajit Singh was coming on its motor cycle

so fast that he could not stop and, therefore, collided with the truck. This argument

is not supported by evidence as discussed and appreciated by the Tribunal. Even if,

however, this argument is assumed to be based on facts, it is not a sufficient

defence in law. According to the elementary rule of driving, the motor truck going

by the left side of the road was not entitled to go to the right side of the road except

after ascertaining that it would not thereby obstruct the on-coming traffic. The

driver is not entitled merely to sound the horn and to go to the right side of the road

without caring whether the on-coming traffic would be blocked by his doing so.

There is nothing to show that the truck driver took care to see that there was no oncoming traffic, which would be blocked by his going to the right side. On the

respondents own argument, Ajit Singh was already coming from the opposite side

with the result that he collided with the truck when the truck went on the right side.

This itself shows that the diversion of the truck to the right immediately blocked the

on-coming traffic and that sufficient warning was not given to the on-coming traffic

that the truck was going to he right side, so that the on-coming traffic should slow

down. The spot of the accident was clearly on the right side of the road where the

truck had no right to be. The right of way on that side of the road was of Ajit Singh

even if he was coming fast from the opposite direction and was not sitting on

stationary motor cycle as deposed by the claimants witnesses. This right way of Ajit

Singh could be modified if the truck had given him sufficient warning of going to the

right side and given him sufficient time to slow down. There is no such evidence on

record. The truck diverted to the right side abruptly giving no opportunity or time for

Ajit Singh to slow down and to avoid collision with truck. The accident was thus

caused by the unilateral negligence of the motor truck driver. There is no

contributory negligence on the part of Ajit Singh. In fact, this sudden diversion of

the truck to the right side of the road was so indefensible that Bakshi Ram did not

have the courage to say that he took care to warn the on-coming traffic before

diverting the truck to the right side. He, therefore, tried to escape from facing the

situation by saying that he was not driving the truck at all and that one Madan Lal

was driving it. Even Madan Lal has not been examined to say that he took care to

warn the on-coming traffic before diverting the truck to the right side. When neither

Bakshi Ram nor Madan Lal has come forward to say that the truck was not driven

rashly and negligently, there is complete absence of evidence on the side of the

respondents to show that the truck driver had taken any precaution to warn the oncoming traffic before diverting to the right side of the road. The only reliable

evidence was, therefore, on the side of the claimants. The claimants evidence is

supported by the undoubted fact that the accident took place on the right side of

the road where the truck was not entitled to be, except after warning the on-coming

traffic. In the absence of any justification for the diversion of the truck to the right

side of the road either pleaded by the respondents or proved by their witnesses, the

maxim res ipsa lgouitur applies and the negligence of the truck driver is estabhshed

beyond doubt. I find so. (2) How is the compensation payable for death caused by

negligent motor driving to be determined There are two possible answers to this

question. Firstly, the compensation is to be determined according to the existing

principles of law. Secondly, it may be determined by the legislature providing for a

different system of compensation such as one based on insurance or on some other

policy.

(4) THE first answer involves a look at the existing law. Negligence is a well known

ground for liability in the law of torts. Whether the damage or death by negligence

is caused by the use of a motor vehicle or in some other manner, does not make

any difference to the principle of liability in tort. Prior to the insertion of Section 110

to 110-F in the Motor Vehicle Act 1939 by the amendment of 1956, compensation

claims for death caused by negligent use of motor vehicles were pursued by way of

suits in Civil Courts. The Courts determined the liability for compensation as also the

quantum of compensation according to the well established principles of the law of

torts. It is well known that the English Law of Torts has been applied by the Indian

Courts on the ground that in the absence of any other rule of law, the Courts are to

follow the principles of "justice, equity and good conscience", which have been

"generally interpreted to mean the rules of English Law, if found applicable 13 the

Indian Society and circumstances," (Waghela v. Sheikh) The English Law itself has

been constantly developing both by judicial decisions and statutory changes. In

India also the common law of England as applied to India has been modified by

legislation. The English statutes modifying the law of torts do not of course apply to

India in terms. If, however, they embody any principles of justice, equity and good

conscience, such principles would apply to India, in preference to the common law

repleaded by legislation as being contrary to such principles. For instance, the

doctrine of "common employment" applied to India so long as it was a part of the

common law. It was, however, regarded as an unjust doctrine and was, therefore,

abolished by statutes in England. In Secretary of States v. Rukmini Bai, it was held,

therefore, that the doctrine of common employment was no longer to be followed in

India as a rule of justice, equity and good conscience as it had been abolished in

England as being contrary to the said principle. Dr.. D. M. Derrett, while tracing the

history of the application of the principle "justice, equity and good conscience" in

India has come to the same conclusion ("changing Law in Developing Countries

(1963) edited by Anderson page 144 ). In Namdev v. Namadclba. paragraphs (15)

to (18) and (21) to (23), the Supreme Court had occasion to point out that only the

basic principles and not the technical requirements of statutes whether in England or

in India could be regarded as the principles of justice, equity and good conscience.

The Fatal Accidents Act, 1855 modified the law of torts regarding the payment of

compensation for death in India and is, therefore, to be followed by us first m so far

as it applies to our case.

(5) THE enactment of Sections 110 to 110-F of the Motor Vehicles Act, in 1956 by

the legislature authorised the State Governments to establish Motor Accidents

Claims Tribunals for such areas as may be specified in the notifications for the

purposes of adjudicating upon the claims for compensation in respect of accidents

involving the death or bodily injury to persons arising out of the use of Motor

Vehicles. Under Section 110-B such a Tribunal has to determine the amount of

compensation "which appears to it to be just. " Is this a second answer to the

question posed by me above as to how compensation for death caused by motor

vehicle is to be determined I do not think so. The reasons are obvious. Firstly,

Sections 110 to IIO-F do not lay down any new principle either for determining the

liability for compensation or for assessing the amount of compensation. They do not

say that compensation is to be paid for every personal injury or death caused by a

motor vehicle. The provisions of Chapter VIII of the Act makes the insurance of

motor vehicles against third party risks compulsory, but do not say that

compensation is payable for every accident. It is clear, therefore, that the above

mentioned provisions do not, in any way, override the pre-existing principles of the

law of torts governing the determination of the liability to pay compensation and

also the fixation of the amount thereof. This was recognised by. D. Dua,. , as he

then was, in Sri Ram Partap v. Ch. Rati Ram

(6) THE same conclusion follows if we consider the object of the introduction of

sections 110 to IIO-F in the Act in 1956 and the nature and functions of the

Tribunal. Enormous increase in the number of use of motor vehicles in India led to

an abnormal increase in the number of accidents and deaths caused by the Motor

Vehicles. Suits for compensation involving expenses, particularly in the shape of

Court fees and delay due to multiple appeals were found to be inadequate as a

remedy to the large number of persons aggrieved by Motor Accidents. The

amendment of 1956, therefore, enable such aggrieved persons to claim

compensation merely by making an application to the Tribunal without payment of

ad valorem Court fees. Appeal against the decision of the Tribunal was provided

directly to the High Court. The legislative intention apparently was to substitute a

cheaper and more expeditious forum in place of the ordinary Civil Courts. Beyond

this, no change was necessary or was intended. In Municipal Corporation of Delhi v.

Kuldiplal Bhandari, by Full Bench of this Court I had occasion, in speaking for the

Court, to point out that the nature of the jurisdiction of the Tribunal is precisely the

same as that of a Civil Court, inasmuch as it entertains the same claim for

compensation based on negligence, as was done by the Civil Court. Even now, in

those areas in which Tribunals are not established by the State Governments, these

claims would be still entertained by the ordinary Civil Courts. As the claims before

the Civil Courts and the Tribunals are the same and as they are tried by the same

law, the decisions of the Tribunal are like the decisions of the Civil Courts, though

they may be called an "award". Such a claim for compensation is based on a cause

of action arising prior to the making of the claim before the Tribunal. The Tribunal

determines the legal rights of the parties on the pre-existing legal principles and not

on any consideration of policy. It is not concerned with recommending or enforcing

what ought to be the right and liability of the parties in future. These are the criteria

which were applied both by the majority and the minority of the judicial committee

of the Privy Council in United Engineering Workers Union v. K. V. Deyanayagam,

(being incidentally the first case in which the right of dissent was exercised by the

members of the Judicial Committee), to determine if a Tribunal is a judicial one or

an arbitral one. On applying these tests there can be no doubt that the Motor

Accidents Tribunal is a judicial one. The Tribunal has not been empowered by

Section 110-B of the Act to depart from the established principles of law. In

determining the amount of compensation "which appears to be just" the Tribunal is

not to invent either a new policy or new law. Not being an arbitral Tribunal or an

administrative Officer, the Tribunal is not an instrument of carrying out any policy of

the legislature or of the Government. Being a judicial Tribunal doing the same work

as a Civil Court does, the Tribunal cannot but follow the same principles of law as

are followed by Civil Courts. For the above reasons, the correct answer to the

question as to how the compensation is to be determined in this case would be that

it is to be done according to the existing principles of law of torts applicable to India

as modified by Indian Legislation.

(7) IN Ishwari Devi v. Union of India, a Division Bench of this Court observed in

paragraph 39 that Section 110 to 110-F of the Act being a special law enacted in

1956 were self-contained and the provisions of the Fatal Accidents Act, 1855 were

not applicable in terms to an application made under Section 110-A of the Act. The

Division Bench, however, did not say that Sections 110-A to 110-F, of the Act

enacted any new principle for the determination either of the liability or of the

quantum of compensation and that they were self-contained in these respects. On

the contrary, they held on agreement of the learned counsels for both the sides in

paragraph 41 that the principles underlying Section 1 of the Fatal Accidents Act,

1855 were applicable to the determination of the compensation for death caused by

a motor vehicle. The conclusion of the Division Bench is not, thus, really different

from the one reached by me above.

(8) THE Rule for fixation of the compensation for death according to the law of

torts as pithily expressed in Section A-1 of the Fatal Accidents Act, is that "in every

such action the Court may give such damages as it may think proportionate to the

loss resulting from such death to the parties respectively, for whom and for whose

benefit such action shall be brought". The Supreme Court further explained the rule

in Gobald Motor Service Ltd. v. R. M. K. Veluswami, by holding that in calculating

the loss caused by the death "any benefit accruing to a dependent by reason of the

relevant death must be taken into consideration. . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . the balance of loss of gain. of a dependent by the death must be ascertained"

as was observed by the House of Lords in Devies v. Powel Duffryn Associated

Collieries Ltd. (9 ). In the light of these principles we have to find out the loss

caused to the claimants by the death of Ajit Singh and the benefits which accrued to

them by the said death, so that compensation to be granted to them should be

equivalent to the loss minus the benefit.

(9) LET us first consider what loss was caused to the dependents by the death of

Ajit Singh. There is little direct evidence of the income of Ajit Singh after June, 1959

till his death in 1963. The claimants relied upon the evidence of Public Witness 11,

Joseph, a Chartered Accountant, who deposed that he had prepared the statements

PW11/1 to Public Witness 11-4 from the books of account handed over to him by

the deceased. These statements are said to have been based on the original

account books. The original account books were neither produced nor proved by the

partners of the deceased Ajit Singh though they are said to have written them. The

statements were not, therefore, admissible in evidence. The learned counsel for the

claimants urged that the Tribunal was not bound by the provisions of the Evidence

Act, and therefore, it could and should have relied upon these statements. I am

unable to agree with this contention. The Tribunal being bound by the pre-existing

rules of law in dealing with an ordinary common law claim is more like a Court of

Law and than for instance, Labour Courts and Industrial Tribunal functioning under

the Industrial Disputes Act, 1947. But even the latter cannot admit documents such

as profits and loss account statements or balance sheets, etc. into evidence unless

they are proved like any other document (Petlad Turkey Red Dye Works Co. Ltd. v.

Dyes and Chemicals Workers Union,. For the Rule that a document should be

properly proved before it can be relied upon is not always a technical rule of the

Evidence Act, but is often a fundamental rule of justice, which cannot be ignored by

any judicial Tribunal. We have, therefore, to rely only upon the uncorroborated

evidence of Amarjit Kaur. She said that the deceased Ajit Singh used to give her Rs.

800. 00 or 900. 00 per month for the family expenses. Making allowance for her

tendency to exaggerate this amount the Tribunal held that the income of Ajit Singh

was Rs. 750. 00 per month. The learned counsel for the claimants urged that this

estimate by the Tribunal was on the lower side. I do not think so. The deceased, Ajit

Singh did not pay income tax. This is a serious handicap in the way of the claimants

in urging that his income was much above the taxable minimum. From the mere

fact, however, that the deceased Ajit Singh, did not pay income tax, it would not be

possible to hold that his income was not above the taxable minimum. For, he sent

his children to a good School and had to spend Rs. 100. 00 or more for their fees

and conveyance charges alone. He also had a motor cycle. The Tribunal was,

therefore, on the whole correct in assessing his income at Rs. 750. 00 per month.

The loss to the dependents would, however, be that part of the income, which was

spent on the dependents by Ajit Singh. Smt. Ajmarjit Kaur has admitted that Ajit

Singh spends Rs. 150. 00 to 200. 00 per month on his personal expenses. The

Tribunal was, therefore, justified in accepting the larger figure of Rs. 200. 00 given

by her as the personal expenses of Ajit Singh. An amount of Rs. 75. 00 per month

was taken by the Tribunal as the monthly eating expenses of Ajit Singh which also

was reasonable. Deducting these Rs. 275. 00 per month from the income of Rs. 750.

00 per month, the remainder was Rs. 475. 00 per month.

(10) ON the death of Ajit Singh, the Motor Workshop, which was run by him, is

now run by Pritam Singh and Dalip Singh. The business of a Motor Workshop

consists on the one hand of the premises and the equipment and on the other hand,

the labour put in by the mechanics. The premises for a workshop need not be

substantial. We see Motor Workshops mostly housed in flimsy structures or even

working in the open. The tools for working are also not a big investment. Once

bought they serve for a long time. On the other hand, the labour of the mechanics is

costly to obtain. Out of the income earned by a workshop. therefore, a larger

portion would go to the mechanics and only a comparatively small portion will be

paid as rent for the use of the premises and equipment. Further, it is not at all

certain that Pritam Singh and Dilip Singh will continue to work in Ajit Singh

workshop with his equipment for the next 15 years. On the other hand, they are

more likely to work independently for themselves. In the nature of things, it is highly

improbable that a widow like Amarjit Kaur or any of her young children can take any

part in the management of this workshop. It may be that Pritam Singh and Dalip

Singh continue to work in the said workshop for some time immediately after the

death of Ajit Singh. There is no certainty at all that they will continue to do so for

long and Amarjit Kaur will be able to obtain this monthly income from them or from

others for 15 years. This source of income, is therefore, undependable and

insubstantial. The Tribunal was not, therefore, justified in arbitrarily estimating this

income to be Rs. 300. 00 per month and that too for the next 15 years. Amarjit Kaur

has admitted that the income was Rs. 150. 00 to 200. 00 per month. In view of the

above reasons we cannot go beyond the admission made by her. I, therefore,

estimate the income to her from this source at Rs. 175. 00 per month, which is the

mean of the two figures stated by her. So, deducting this amount of Rs. 175. 00 per

month from Rs. 475. 00 per month, the actual amount spent by Ajit Singh on his

dependents would come to Rs. 300. 00 per month and not Rs. 175. 00 per month as

held by the Tribunal.

(11) THE learned counsel for the claimants urged that Ajit Singh was a forward

looking ambitious person. His income was, likely to rise in future. It is true that Ajit

Singh had plans to start manufacture of motor parts and he had invested Rs. 5,000.

00 for getting an industrial plot for the purpose. He had also invited the late Prime

Minister, Nehru, to visit his workshop. The manufacture of motor parts, however,

required several other steps to be taken. As pointed out by a learned author

(Munkmans Damages for Personal Injuries and Death, 3rd Edition, page 37) :"an

estimate of prospective loss must be based, in the first instance on a foundation of

solid facts; otherwise it is not an estimate, but a guess. It is, therefore, important

that evidence should be given to the Court as many solid facts as possible. When it

is shown that the plaintiff was earning money at a special rate at the time of the

injury, an ordinary presumption of the law is that he would have continued to earn

at the same rate. If the plaintiff claims that he would have earned more, he must

prove relevant facts, for example by showing that he was on a regular ladder of

promotion, or in a trade where rates of pay are increased from time to time, or that

he had special merits or qualifications or opportunities, which would have led to an

improvement. "in the absence of reliable evidence of future improved income,

therefore, the only workable basis of Ajit Singhs future income is the income he was

making at the time of his death.

(12) THOUGH Ajit Singh evaded to pay income tax in his life time, in estimating his

future income provision has to be made for the deduction of the income tax from it,

as was held by the majority of the House of Lords in British Transport Commission v.

Gourley,. For, as observed by Lord Goddard, the compensation for death is granted

not by way of restitution but only to compensate by monetary payment the loss

caused to the dependents as far as this can be done. The amount of tax, which

would have been payable by the late Ajit Singh would have to be calculated on his

net income and a proportionately reduced part of it would have been deductible

from the amount spent by Ajit Singh on his dependents out of his net income. This

is somewhat difficult to calculate. On the other hand, it is provable that the

deceased might have made savings out of his income if he had lived. In Kassam v.

Aerated Water Co. (12) the Privy Council per Lord Guest observed that no reduction

should be made on account of acceleration of the estate to the legal representatives

of the deceased "having regard to the anticipated savings which might reasonably

have been expected to be made by the deceased if he had lived, as these two

figures very largely cancel out". I, therefore, think it just in this case that the

amount of probable savings, which would have been made by Ajit Singh if he had

lived should be set off against the income tax which he would have been liable to

pay. On this account, therefore, no tax deduction is to be made from the amount

payable to the dependents by way of compensation.

(13) THE average life expectancy in India is about 50 years. This does not mean

that Ajit Singhs life span is to be taken to be 50 years only. The average is low due

to infant mortality. But Ajit Singh having survived the infancy period, he might have

lived at any rate up to the age of 60 or 65 years. The future earnings of Ajit Singh

are to be calculated, however, not for the average life but for the working life, that

is to say for the period for which he would have been active enough to work, (See

Quantum of Damages by Kamp and Kamp Vol. 2, 2nd Edn. page 20 ). Ajit Singh was

about 40 years old when he was killed. It is well known that the business of running

a Motor Workshop demands hard work. Ajit Singh from his photographs appears to

have been a somewhat thinly built man. He was subject to the risks of accidents,

etc. in the life that he lived. On the whole the Tribunal has, therefore, been right in

taking the remaining life expectancy of Ajit Singh to be 15 years. It could not be

longer. In the Supreme Court decision cited above, the age of the deceased was

only 34 years and the compensation awarded to him worked out a life expectancy of

only eight years more. In Buckley v. John Alien and Ford, (13) the life expectancy of

the deceased was taken to be for 15 years, though the deceased was only 35 years

of age when he died and was very active worker in good health. Relying on this

decision the conclusion reached in the latest edition of the well known book

"winfield on Torts" 8th edition, page 620, foot note, 5, is as follows:-"in the case of

the death of a normal healthy man, the maximum number of years assuming full

dependency is likely to be between 12 and 15 years. "

(14) I agree, therefore that on a true estimate the remaining life expectancy of Ajit

Singh would have been 15 years as calculated by the Tribunal.

(15) THE dependents of Ajit Singh were his wife and five children aged 17, 12, 9

and 7, the age of the youngest one not being given in the application. The

dependency of the eldest child, who is a daughter, would have been five years more

as she would be married off at the age of 22 years or so. The dependency of the

second child, who is a son aged 12 years would be 12 years or so. The dependency

of the remaining ones would be full 15 years. The widow being burdened with at

least three young children, who would not become independent for the next 15

years after the death of Ajit Singh is not likely to remarry during the said period.

Multiplying the monthly income of Rs. 300. 00 per month for 15 years, we get an

amount of Rs. 54,000. 00. Out of this, we have to deduct l/6th of Rs. 300. 00 per

month for 10 years as the 1st daughter, Harcharan Kaur would be married off by the

end of five years and l/5th of Rs. 300. 00 out of the remaining income for a period

of three years as the second child would cease to be dependent in 12 years. Making

these deductions, the total amount works out at Rs. 45,840. 00. This amount would

have come to the dependents from month to month if Ajit Singh had survived. Since

it is being paid to them immediately in a lump sum, same scaling down has to be

made for such acceleration. Even at the rate of 3% per annum paid by the Savings

Banks, an amount of money is likely to be increased by about 50 per cent, if interest

is added to it for 15 years. A deduction of about 33/1/8 per cent is, therefore, to be

made from the above amount of the capitalised income. The net loss caused to the

dependents by the death of Ajit Singh comes to Rs. 30,560. 00.

(16) IN paragraphs 45 of the judgment of the Tribunal it has been stated that

because of the death of Ajit Singh, Amarjit Kaur received Rs. 14,000. 00 from the

Insurance Company and the parlies have no objection to this amount being

deducted from the amount of compensation. The learned counsel for the claimants

before me, however argued that this admission made on behalf of the claimants

before the Tribunal can be withdrawn by him if it is proved that it was wrong in law.

The established rule enunciated by the House of Lords in Davies v. Powel Duffryn

Associated Collieries Ltd. , (9) per lord Wright at page 611, is as follows :-"in

assessing the damages, all circumstances which may be legitimately pleaded

diminution of the damages must be considered. . . . . . . . . . . . . . . . . . . . . . The

Actual pecuniary loss of each individual entitled to sue can only be ascertained by

balancing on the one hand, the loss to him of the future pecuniary advantage which

from whatever source comes to him by reason of the death. "

(17) THE Insurance amount which becomes payable to the widow and the children

of the deceased by reason of the death is, therefore, a pecuniary advantage which

has to be deducted from the amount of compensation. Jn Nance v. British Colombia

Electricity Railway Co. Ltd. , page 615, (14) it was pointed out that the benefit which

the widow of the deceased got by reason of latters death is really the acceleration

of her interest in his estate. Both these decisions were cited with approval by the

Supreme Court in the decision, referred to above. In considering insurance,

however, a distinction has to be borne in mind. Accident insurance by which the

insured will stand to receive a certain amount if he is injured in accident stands in

one category. The principle underlying such accident insurance is that the insurer

who pays the premiums for the purpose of insuring himself does so on the foot ing

that his right to be compensated when the accident insured against happens is an

equivalent for the premiums he has paid. It is a quid pro quo, larger if he gets it on

the chance that he will never get it at all". Money received under such an accident

insurance policy is not, therefore, deductible or taken into account in any way in

assessing damages for personal injuries as was held in Bradburn v. Great Western

Railway Company,. On the other hand, there is the ordinary life insurance life

amount of which accrues specifically by reason of death. The real pecuniary benefit

which accrues to the heirs of the deceased by reason of the death consists in the

accelerated receipt of the amount of the insurance and it is this benefit of

acceleration which is deductible from the amount of compensation, as was held in

Grand Trunk Railway Company of Canada v. Fennings. There is something in the

evidence of Amarjit Kaur to suggest that out of this insurance amount of Rs. 14,000.

00 a part was due on the ordinary life policy while the rest was due to the accident

benefit clause in the said policy. The claimants have not cared to produce the

policies, which are in their possession. The terms of the policy could be proved only

by the production of the original documents by Amarjit Kaur. As she has not done

so, we cannot speculate what the precise terms of the accident benefit clause were,

viz. Whether the clause was a pure accident policy, the amount payable on which

would not be deductible from compensation or whether the clause only provided for

an enhanced compensation if death was caused by accident in which case the

amount would be deductible as it is payable on death. The question whether the

accident benefit clause was of the one kind or the other is purely one of fact, which

could have been decided only after the production of the original policy. The learned

counsel for both the sides before the Tribunal agreed that the whole of the amount

of the insurance was deductible. This agreement cannot be said to be merely on a

question of law, viz. whether the amount is deductible or not. It is also on a

question of fact, viz. that the amount under the terms of the policy was payable by

reason of death of Ajit Singh and was, therefore, deductible. What is a question of

pure law is that instead of the whole amount being deductible, only the benefit of

acceleration of the payment of it to the widow is alone deductible. To this extent

only the admission made by the counsel for the claimants before the Tribunal can be

withdrawn. The best way to estimate the benefit of acceleration is to calculate the

"interest on the money during the period of acceleration" as observed by Lord

Watson at page 805 of the Grand Trunk Railway Companys case cited above. Such

interest at 3% for a period of 15 years would be about l/3rd of the amount Rs.

4,666. 00 only are, therefore, to be deducted from the compensation amount.

(18) IN England at common law, insurance monies like all other benefits resulting

from the death of the deceased to his dependents had to be deducted from

compensation awarded for death under the law of torts (as modified by the Fatal

Accidents Act) as would be clear from the Privy Council decision in Grand Trunk

Railway Companys case cited above. Statutory inroads on this principle were,

however, made by the Fatal Accident (Damages) Act, 1908 and Fatal Accidents Act.

1959 with the result that in England the insurance monies are now not taken into

account in determining the compensation payable for fatal accidents. These statutes

have thus made an exception to the rule enunciated by the House of Lords in 1942.

Appeal Cases 601 and by the Privy Council in 1951 Appeal Cases 601 which was

adopted by the Supreme Court in AIR 1962 SC 1 [LQ/SC/1961/184] . that all benefits accruing to the

dependents of the deceased by reason of his death from whatever source are to be

deducted in assessing the compensation for death. The problem before me is to

decide whether the common law rule should be followed in this respect or whether

the English law as amended by statutes should be followed in preference to the

common law. As stated above in India we are to follow the common law or the

English law as amended by the statutes only in so far as it embodies the principles

of "justice, equity and good conscience". The long established rule is that the

dependents of the deceased are awarded only the balance of the loss and the

benefit suffered by them by reason of the death of the deceased. This rule was

apparently based on "justice, equity and good conscience" and has been followed in

India. In AIR 1962 SC 1 [LQ/SC/1961/184] , the Supreme Court has affirmed it. On the date of the

decision of the Supreme Court, statutory changes in England had already engrafted

an exception to this rule by excluding the insurance money from the benefits which

are to be deducted from the loss caused by the death of the deceased. The

Supreme Court, however, did not indicate in any way that the English law as

amended by the statute would be followed in India or that the rule affirmed by them

was subject to this statutory exception obtaining in England. The trend of legislation

in England is apparently to enhance the compensation payable on death. The

legislature is leaning in favour of the dependents of the deceased and against the

tortfeasors and the insurance company. In India, however, there is no such

legislation. It cannot be said that the statutory changes made in England embody a

fundamental rule of justice, equity and good conscience or that the unamended

common law was, therefore, contrary to to "justice, equity and good conscience".

Unless and until, therefore, the Supreme Court decides in favour of following English

law as amended by the statutes in this respect, I feel bound to follow the

unamended common law, which in my view was endorsed by the Supreme Court in

AIR 1962 SC 1 [LQ/SC/1961/184] . The benefit of acceleration of the receipt of the insurance monies

has, therefore, to be deducted as stated above.

(19) THE next item which has come to the heirs by reason of the death of Ajit

Singh is the interest worth Rs. 5,000. 00 in the purchase of the industrial plot. In

this case also it is only the benefit of the acceleration of the interest which has to be

deducted. The acceleration by deducting the interest for 15 years out of this would

be about l/3rd of the amount. Rs. 1,666. 00 are, therefore, to be deducted on this

account. It is also admitted by Amarjit Kaur that Rs. 1,000. 00 were paid to her out

of the Chit Fund on the death of the deceased. The benefit of acceleration thereon

worked out by the same method would be Rs. 333. 00 which is the amount to be

deducted from the amount of compensation.

(20) THE following is the tabulated summary of the amounts of loss and benefit to

the heirs of Ajit Singh by his death :-

(21) ACCORDINGLY the award of the Tribunal is modified and a net compensation

of Rs. 23,895. 00 is ordered to be paid by the respondents to the claimants. The

liability of the insurance company is limited to Rs. 20,000. 00 only, which was the

maximum for which third party risk was insured against. The claimants appeal is

allowed to this extent, while the respondents appeal is dismissed. No order as to

costs.