T.V.R. Tatachari, J.

(1) THIS is an appeal filed under Section 110-D of the Motor Vehicles Act against

the order of the Motor Accidents Claims Tribunal, Delhi, dated 17/3/1966, dismissing

an application filed before the Claims Tribunal under Section 110-A of the said Act

for the. payment of compensation.

(2) THE first appellant herein is the widow of one Sham Lal Malik, the sixth

respondent and the second appellant are the sons, the third appellant is the

daughter, and the fourth and the fifth appellants are the father and the mother of

the said Sham Lal Malik. They filed the aforesaid application as heirs of the said

Sham Lal Malik claiming a sum of Rs. 4,50,000. 00 as compensation arising out of

an accident which took place on 26/12/1961 at Farash Khana Bus Stop, G. B. Road,

at about 4 p. m. , resulting in the death of the aforesaid Sham Lal Malik. The

applicants stated in their application that the deceased Sham Lal Malik was about 40

years old and was doing business earning a monthly income of about Rs. 1,700. 00

per month; that on 26/12/1961 the deceased was waiting for the bus of route No. 2

at the Farash Khana Bus Stop; that Bus No. DLP 730 of route No. 13 arrived at the

said But stop at about 4 p. m. ; that immediately after, I Bus No. DLP 230 arrived at

the said Bus Stop ; and that just when the deceased placed his foot on the footboard

of the said bus, the Conductor rashly and in a very great haste, without

allowing the deceased to enter into the bus, rang the bell, and the driver started the

bus. The applicants further stated that the driver crossed the bus No. DLP 730 which

was standing so closely that the deceased was crushed between the two buses, and

as a result of the same he sustained very serious injuries on the chest; that he was

then taken to the Irwin Hospital where, as a result of the said injuries, he died at

about 6 p. m. on the same day; that the accident was caused on account of the rash

and negligent acts of the Conductor and the Driver of the bus No. DLP 230 of route

No. 2; that the said Conductor and Driver (respondents Nos. 4 and 5) were the

employees of respondents Nos. 1 to 3, namely (1) the Union of India through the

Secretary to the Ministry of Home Affairs, Government of India, New Delhi, (2) the

Municipal Corporation of Delhi, and (3) the Delhi Transport Undertaking through the

Officer-Incharge, Scindia House, New Delhi; that the accident took place during the

course of their employment; and that, therefore the respondents 1 to 3 were also

liable to pay the compensation claimed by the applicants.

(3) IT was also stated in the application that the deceased who was aged about 40

years was in a very good state of health; that he was a partner in a flourishing

business, namely, M/s. Arjan Dass Gupta and Brothers, Coal Merchants, which have

seven branches in all important places in India; that the deceased was assessed to

income-tax on the yearly income of Rs. 21,296. 00 in the assessment year 1960-61;

that his income was bound to improve every year; that the age of the widow of the

deceased was 38 years; that the eldest son of the deceased was aged about 19

years and was studying in B. Sc. (Final) in Kirori Mal College Delhi; that the other

son of the deceased was aged about 18 years and was studying in the 2nd year in

Shri Ram College of Commerce; that the daughter of the deceased aged about 14

years, was studying in the New Bharat Higher Secondary School; that the father and

the mother of the deceased were 67 and 65 years old respectively; and that the

applicants claim Rs. 4,50,000. 00 as compensation from the respondents taking into

consideration the loss of pecuniary benefits which they would have received if the

deceased had not died, his pecuniary savings from his income, his contributions to

the family for their maintenance and education, etc. , and also the assistance he

would have continued to give to his family members and the loss of estate.

(4) THE application was contested by respondents 3, 4 and 5, the Delhi Transport

Undertaking and the Conductor and the Driver of the offending bus. They filed a

reply to the application raising some preliminary objections, namely, that the motor

vehicles of the Delhi Road Transport Authority were exempted from the provisions of

Chapter VIII of the Motor Vehicle Act by the Central Government by a notification

S. R. B. 711, dated 7/4/1953; that on repeal of the Delhi Road Transport Authority

Act of 1960, the notification, etc. issued under the said Act remained in force by

virtue of section 516 (2) of the Delhi Municipal Corporation Act and the vehicles of

the respondent No. 3 were also exempted from the provisions of Chapter VIII of the

Motor Vehicles Act under which the present application was made, and, therefore,

the present application was not maintainable that no notice, as required under

section 478 of the Delhi Municipal Corporation Act, was given; and that the

application was bad as no notice under section 80 of the Civil Procedure Code was

served on the Government of India. On the merits, they stated, inter alia, that the

deceased attempted to board bus No. DLP 230 which was in a running condition,

and in his attempt to board the moving bus, a portion of his body which was outside

the bus struck against the stationary bus No. DLP 730, as a result of which he fell

down from the said Bus No. 230 that on 26/12/1961, bus No. DLP 230 was

proceeding on route No. 2 from Fountain to Rajouri Garden; that when the said bus

reached the bus stop at Farash Khana near Lahori Gate, another bus No. DLP 730

was standing at the same bus stop; that the bus No. DLP 230 which was full to its

standing and sitting capacity of passengers did not and could not stop at the above

bus stop in view of the fact that under the law, the crew had no right to take any

passengers under those circumstances, that since another bus was standing at the

same bus stop, the bus manned by respondents Nos. 4 and 5 slowed down its

speed, and when it was swerving towards right to overtake the standing bus,

suddenly the deceased tried to board the running bus at a great risk and peril, that

in his attempt to do so in boarding the moving bus, the major portion of his body

was hanging outside the bus when it was dashed against the stationary bus, as

result of which he fell down and received shocked; that it was thus due to the

contributory negligence of the deceased that he was involved in the accident in

question; that there was no rashness or negligence on the part of the respondents

Nos. 4 and 5; that the allegations in the. application regarding the age of the

deceased, his state of health and income, and the relationship of the applicants to

the deceased should all be proved by the applicants; and that the applicants were

not entitled to get anything as compensation, and the petition should be dismissed

with costs.

(5) THE applicants filed a replication in which they pointed out that at the time of

the issue of the notification mentioned in the preliminary objections, the provisions

under which the application was made were not incorporated in the Act and were

enacted subsequently; that the prior notification could not, therefore, exempt the

vehicles of the Delhi Road Transport Authority from the provisions enacted

subsequently; that the saving clause in the Delhi Municipal Corporation Act had no

application at all; and that no notices under section 478 of the Delhi Municipal

Corporation Act and under section 80 of the Code of Civil Procedure were necessary.

They also reiterated the allegations and contentions in their application and stated

that the version given by the respondents was false and concocted; that there was

no contributory negligence on the part of the deceased; that under the

circumstances, the respondents 4 and 5 had the last opportunity of avoiding the

accident by a reasonable care and the plea of the alleged contributory negligence

was not at all open to the respondents; and that the applicants were entitled to the

compensation as claimed by them.

(6) ON the aforesaid pleadings of the parties, the Tribunal framed the following

issues;-1. Whether the vehicles of the Delhi Transport Undertaking are exempt from

the provisions of Chapter VIII of the M. V. Act 2. Whether this application is not

maintainable for want of notice under Sec. 478 of the Delhi Municipal Corporation

Act 3. Whether the death of Shri Sham Lal Malik was due to an accident caused by

the rash driving and negligence of the driver and conductor respectively of Bus No.

DLP 230 on 26/12/1961 at about 4 P. M. at Farash Khana 4. To what amount of

compensation the petitioners are entitled and from whom 5. Whether the

petitioners are the heirs of the deceased6. Whether the deceased was guilty of

contributory negligence 7. Relief. "

(7) THE claims Tribunal held issue No. 1 in favour of the appellants (applicants)

relying upon an un-reported decision of the High Court of Punjab (A. N. Grover,.) in

F. A. O. No. 80-D of 1959, wherein it was held that the Motor Vehicles of the

respondents were not exempted from the provisions of Chapter VIII of the Motor

Vehicles Act, and not an application for compensation lay against them before the

Claims Tribunal. The Tribunal also added that the issue was not pressed before the

Tribunal by the learned counsel for the respondents. Regarding issue No. 2 also, the

Tribunal observed that it was not pressed by the learned counsel for the

respondents during the course of the arguments before the Tribunal, and that at

any rate the issue had no substance in the opinion of the Tribunal. On issues Nos 3

and 6, the Claims Tribunal on a consideration of the evidence held that it could not

be said, under the circumstances, that the accident resulting in the death of Sham

Lal Malik was due to a rash and negligent act on the part of the driver or the

conductor of the offending bus. On issue No 4, the Tribunal held that the deceased

was a partner in the Firm M/s. Arjan Dass Gupta and Brothers, and that the income

of the deceased was about Rs 1,450. 00 per month. The Tribunal, however, found

that the share of the deceased. Sham Lal Malik, was allotted after his death to his

wife, Smt Ishwari Devi, the first appellant herein, and Smt Ishwari Devi afterwards

became the partner of the firm, that it was in the evidence of A W 7, Arjan Dass,

that the income of the firm increased after the death of Sham Lal as the firm had

opened certain other branches, and that, therefore, it could not be said that the

appellants (applicants) suffered any pecuniary loss after the death of Sham Lal. The

Tribunal negatived the contention on behalf of the appellants (applicants) that the

income of Smt Ishwari Devi, who became a partner in the firm, could not be taken

into consideration, relying upon the decision of the Supreme Court in Gobald Motor

Service Limited and another v. RML Veluswami and others. The claims Tribunal also

held that the appellants (applicants) were, no doubt, also entitled to loss of estate

under section 2 Of the Fatal Accidents Act, but that in the present case, since it was

admitted that the deceased had insurance claim of Rs 30,000. 00 to Rs 40,000. 00,

which amount was received by the family after the death of Sham Lal, no question

of awarding any more amount arose in the circumstances. In the result, the Claims

Tribunal held that the appellants ( applicants) were not entitled to any amount as

compensation. On Issue No 5, the Claims Tribunal found that the six applicants were

the legal representatives of the deceased. Thus, as a result of its findings, the

Claims Tribunal dismissed the application. It is against this order that the present

appeal has been filed by the unsuccessful applicants.

(8) THE questions raised in issues 1 and 2 were not urged before us by Shri DD

Chawla, the learned counsel for the respondents, nor did he dispute the finding on

issue Nos 5. The only questions which were argued before us were those raised

under issues 3,4 and 6, namely- (1) Whether the death of Sham Lal Malik was due

to an accident caused by the rash driving and negligence of the driver and the

conductor respectively of Bus No DLP 230 on 26/12/1961 at about 4 pm, at Farash

Khana Bus Stop (2) Whether the deceased was guilty of contributory negligence

and (3) to what amount of compensation the appellants (applicants) were entitled

and from whom questions Nos 1 and 2 mentioned above are connected, and it is

convenient to discuss them together. [after discussing the evidence, the judgment

proceeded as follows :-]we, therefore, prefer to accept the version of the witnesses

of the appellants (applicants) to that of the witnesses of the respondents, and hold

that the bus of route No 2 stopped at the Farash Khana bus stop at about a distance

of 5 or 6 feet from the stationary bus of route No 13, that the deceased boarded the

bus, and when he was still on the foot-board, the conductor gave the bell and the

bus moved passing by the side of the stationary bus very closely, with the result

that the deceased either struck against the right rear corner of the stationary bus or

got pressed between the two buses and sustained the injuries, as a result of which

he died later in the hospital.

(9) THE next question for consideration is as to whether the accident was caused

by the rash driving and negligence of the driver and the conductor respectively of

the offending bus. According to the findings arrived at by us above, the deceased

Sham Lal boarded the bus when it was stationary, but when he was still on the footboard with a part of his body outside the bus, the conductor gave the bell and the

bus moved passing by the side of the stationary bus very closely. Shri S N Chopra,

the learned counsel for the appellants, contended that the deceased was not at all in

wrong in boarding the bus which was stationary, that it was the conductor who was

negligent and even rash in ringing the bell and thereby giving the signal to the

driver for the starting of the bus without waiting till the deceased Sham Lal moved

himself from the foot-board into the bus. Shri Chopra also contended that the driver

also acted in a rash and negligent manner in overtaking or passing by the stationary

bus of route No. 13 very closely. We consider that there is considerable force in the

two contentions of Shri Chopra. The conductor, RW 1, Jai Dayal, stated in the

examination-in-chief that the deceased. Sham Lal, was standing on the foot-board

of the bus with his body outside the bus. He admitted in cross-examination, that he

(the witness) was standing near the second seat from the rear at that time, and was

seeing the deceased running towards the bus, getting on to it, and standing upon

the footboard of the offending bus. No doubt, according to the conductor, he gave a

double bell even when the bus was nearing Sharada Nand Market i.e. before. it

reached the Farash Khana bus stop, and the bus was actually moving at the time

when the deceased ran towards the bus and got on to the foot-board. But, we have

rejected above this version of his. However, the fact remains that the conductor was

aware of the deceased person running towards the bus and getting on to and

standing on the foot-board of the bus, on his own statements in his deposition.

Therefore, the question is as to whether he should not have, in that situation, given

the bell for the starting of. the bus without waiting till the deceased moved from the

foot-board and got inside the bus. The answer is obviously that he should not have

done so. To need hardly be emphasised that the safety of the public who travel by

public conveyances like the bus in question is the primary concern of the conductor

and the driver who are incharge of and control. public conveyances. When the

conductor saw that the deceased, Sham Lal, was boarding the bus and was yet on

the foot-board, he should not have given the bell for the starting of the bus, but

should have waited till Sham Lal got inside the bus. To have given the bell and thus

signaled the driver to start the bus, is nothing but rashness and negligence on the -

part of the conductor. The conduct of the driver also was rash and negligent, in that

he drove the offending bus so closely near to the stationary bus that there was no

sufficient clearance between the two buses and the deceased got squeezed or

sandwitched between the two buses. No doubt, some of the witnesses stated that

the body of the deceased struck against the stationary bus while others stated that

the deceased got sandwitched between the two buses. But the doctor, A. W. 2, who

examined the body of the deceased found that the heart was shifted to the right

side and sounds. were feeble, and that on the left side of the chest there was

tenderness, surgical emphysema and fracture of ribs on the left side. The said

injuries suggest that it was not a case of mere striking against the rear corner of the

stationary bus, but was a case of the deceased. getting squeezed or pressed

between the two buses. It is also true that the driver of the offending bus, R. W. 2,

stated that the distance between the two buses at the time of the overtaking was

about 1 feet. The mention of the said distance by the witness was and could only be

an approximation. The very fact that the deceased got pressed or squeezed

between the two buses speaks for itself, and clearly shows that the offending bus

passed very closely by the stationary bus. It has to be recalled that the width of the

road on. the left side of the verge was stated to be 20 to 22 feet, and the stationary

bus was parked at a distance of about 1 feet from the Patri on the left side. Thus,

adding the said H feet to the approximate width of the bus at its rear (. e. about 6

feet), a space of about 12 feet or even more, between the stationary bus and verge,

was available to the driver of the offending bus. He thus had ample space for giving

a larger clearance between the two buses.-He, however, drove his bus very closely

near to the stationary bus. In doing so, he was obviously careless, rash and

negligent. On a consideration of the evidence, we are of the opinion that it has been

established by the appellants (applicants) that the accident was caused by the rash

driving and negligence of the driver and the conductor of the offending bus No. DLP

230.

(10) A similar view was taken by a learned Single Judge of the Circuit Bench of the

Punjab High Court at Delhi (S. B. Capoor,.) in Kuldip Lal Bhandari and others v.

Umed Singh and Others, In that case also, a lady boardeda bus at a bus stop, the

conductor gave the bell while she was still on the foot-board, and the driver failed to

steer clear of another bus which was parked ahead, with the result that the footboard

side of the offending bus collided against the said stationary bus, and the lady

was sandwitched between the buses and died. The learned Judge held that both the

conductor and the driver were negligent, the former being negligent in signalling the

bus to proceed before the lady had got safely into it, and the latter in not allowing

sufficient clearance while passing the bus in front of him. We referred to the

decision only to point out that another learned Judge had taken the same view as

we have taken, namely, that the act of the conductor in signalling the bus to

proceed before the passenger standing on the foot-board moved into the bus, and

the act of the driver in not allowing sufficient clearance while passing by the side of

the stationary bus, are acts of rashness and negligence on the part of the conductor

and the driver.

(11) THE next contention of Shri D. D. Chawla was that the deceased Sham Lal

was guilty of contributory negligence. In view of our finding on a consideration of

the evidence in the present case that the bus of route No. 2 was not in motion as

alleged by the respondents but was stationary, as alleged by the appellants, at the

time when Sham Lal boarded it, the question of contributory negligence on the part

of Sham Lal does not arise.

(12) AS regards the compensation payable to the appellants (applicants), it has to

be remembered that the application for compensation was filed under section 110-A

of the Motor Vehicles Act, 1939, and not under section 1-A of the Fatal Accidents

Act, 1855. The preamble to the Fatal Accidents Act shows that the said Act was

enacted in 1855 as it was considered at that time that no action for suit was

maintainable in any court against a person who, by his wrongful act, neglect or

default, may have caused the death of another person, and because it was right and

expedient that the wrong doer in such a case should be answerable in damages for

the injury so caused by him. The act provided for the maintainability of civil actions

by certain persons to recover compensation for wrongs resulting in the death of a

person to whom they stood in special relation. The provisions of the Act are to a

large extent similar to the provisions in the English Fatal Accidents Act, known as

the Lord Campbells Acts. The act provides for compensation or damages- (1) for

the loss caused by the death of the person as a result of the accident to the

representatives of the deceased person, namely, wife, husband, parent and child;

and (2) for any pecuniary loss to the estate of the deceased.

(13) IT is thus a general law providing for compensation to the representatives of

a deceased person or to his estate for the loss occasioned by his death as a result of

an accident. On the other hand, the Motor Vehicles Act is a special law which, by

sections 110 to 110-F provides for adjudication upon claims for compensation in

respect of accidents involving the death of, or injury to, persons arising out of the

use of motor vehicles. By section 110, a State Government is empowered to

constitute one or more Motor Accidents Claims Tribunals for adjudicating upon the

aforesaid claims for compensation. Section 110-A provides that an application for

compensation arising out of an accident of the nature specified in section 110 (1)

may be made by the person who has sustained the injury, or where death has

resulted From the accident, by the legal representatives of the deceased, or by an

agent duly authorised by the person injured or the legal representatives of the

deceased, as the case may be, and also prescribes the period within which such an

application may be made. Section 110-B provides for the holding of an enquiry into

the claim and for the making of an award by the said Tribunal. Section 110-C

contains provisions regarding the procedure and the powers of the Claims Tribunal.

Section 110-D provides a right of appeal to the High Court to a person aggrieved by

the award. Section 110-E. provides for the recovery of money due from an insurer

under an award as arrear of land revenue. Section I IO-F bars the jurisdiction of civil

courts to entertain any question relating to any claim for compensation which may

be adjudicated upon by a Claims Tribunal. The Act purports to consolidate and

amend the law relating to motor vehicles. The present sections 110 to 110-F were

substituted in the place of the old section 110 by section 80 of the Motor Vehicles

(Amendment) Act, 1956 (Act No. 100 of 1956), and were intended to provide a

cheaper and speedier remedy by way of an application before a Claims Tribunal

instead of the remedy of a suit in a civil court as provided in the Fatal Accidents Act.

Thus, the Act is a self-contained Act, and, as such, an application filed under section

110-A of the Motor Vehicles Act is governed by the provisions in the motor Vehicles

Act and not by the provisions in the Fatal Accidents Act. A similar view was taken by

a Division Bench of the High Court of Madras (Ananta Narayanan, C.. and

Ramakrishnan,.) in Mohd. Habibula and others, v. K. Sitammal, in which the learned

Judges observed as follows :-"but the law has not been stationary since that Central

Act was enacted in 1855. On the contrary, there has been considerable development

since then, and it is also obvious that, in the subsequent century that has elapsed,

the volume of motor traffic and the statistics of motor accidents, fatal or otherwise,

must both have originated and increased beyond all proportions. In this prospective,

the Legislature has deliberately enacted the Motor Vehicles Act, and provided by

virtue of sections 110 to 110-F of that Act, not merely a self contained code for the

adjudication of claims to compensation on behalf of the victims of a motor accident,

but also a complete machinery for the adjudication of such claims. Under section

110-F, the jurisdiction of the civil court is specifically ousted by the Claims Tribunal

for the area. The claim in the present case is under sections 110 to 110-F of the

Motor Vehicles Act. It has no connection whatever with the Indian Fatal Accidents

Act (No. 13 of 1855) and is not advanced under any section or provision of that Act.

It is noteworthy that section 110 to 110-F that we have referred to make no

mention of any kind concerning any of the provisions of the Fatal Accidents Act, and

do not incorporate any such provision even by the most oblique reference. "

(14) REFERENCE may also be made to the decision of a learned Single Judged. K.

Mahajan,. In Veena Kumari Kohli v. Punj Roadways and others, in which the learned

Single Judge, distinguished the decision of the Supreme Court in Gobald Motor

Service Limited v. R. M. K. Veluswami, by observing as follows :-"that decision would

have applied only if a claim under Fatal Accidents Act had been made before the

Tribunal. No such claim was made. Therefore, it is idle to suggest that the Tribunal

has gone wrong in not determining the claim on the principle enunciated by their

Lordships of the Supreme Court in Gobald Motor Services case. "

(15) THUS, a claim for compensation by an application under the Motor Vehicles

Act has to be determined with reference to the provisions in the Motor Vehicles Act.

Section 110-B of the Motor Vehicles Act runs as under :-"110-B. Award of the Claims

Tribunal-On receipt of an application for compensation made under section 110-A,

the Claims Tribunal shall, after giving the parties an opportunity of being heard, hold

an enquiry into the claim and may make award determining the amount of

compensation which appears to it to be just and specifying the person or persons to

whom compensation shall be paid; and in making the award, the Claims Tribunal

shall specify the amount which shall be paid by the insurer. "

(16) THE measure for the compensation is thus stated to be the amount of

compensation which appears to the Tribunal to be just. On the other hand, in

section 1-A of the Fatal Accidents Act, provision is made that-"the Court may give

such damages as it may think proportioned to the loss resulting from such death to

the parties respectively, for whom and for whose benefit such action shall

be brought;. . . . " And under section 2 of the said Act, provision is made that the

administrator or representative of the deceased may insert a claim for and recover-

"any pecuniary loss to the estate of the deceased occasioned by such wrongful act,

neglect or default,. . . . "

(17) THERE are various decisions in which courts had to deal with claims under the

Fatal Accidents Act and interpret the above mentioned words in the sections 1-A and

2 of the Fatal Accidents Act. But, in view of the difference between the language of

sections 1-A and 2 of the said Act and section 110-B of the Motor Vehicles Act, the

decisions under the Fatal Accidents Act are not directly applicable to a claim made

under the Motor Vehicles Act. A claims Tribunal under the Motor Vehicles Act is

empowered to determine the amount of the compensation which appears to it to be

just. What amount of compensation would be just has necessarily to depend upon

the circumstances in a given case. The word "just" has a wider ambit than the

words used in sections 1-A and 2 of the Fatal Accidents Act. Therefore, a Claim

Tribunal dealing with a claim under the Motor Vehicles Act has only to consider what

appears to it to be just compensation on the facts and circumstances of the case

before it, and need not strictly follow and apply the basis of the assessment of

compensation indicated in the various decisions under the Fatal Accidents Act or

under English Law.

(18) THE said decisions, Indian or English, can at the most, if at all, be of general

guidance. The Claims Tribunal may, in deciding the just compensation in a case,

bear in mind and apply in any general principle or principles laid down in the

aforesaid Indian or English decisions as far as they may be applicable, and in so far

as they may promote the interests of justice on the facts and the circumstances of

each case. In other words, the said principles laid down in the decisions under the

Fatal Accidents Act may be used or applied if they, in the opinion of the Tribunal,

would serve as a proper measure of what is just compensation on the facts and

circumstances of the case in hand.

(19) AS already stated, there are two distinct kinds of damages or compensation.

e. , two distinct heads, recoverable under the Fatal Accidents Act, 1855. The first is

the compensation proportionate to the loss resulting from death to the beneficiaries

named in section 1- while the second, provided for in section 2 of the Act, is the

compensation for the loss resulting to the estate of the deceased, not from his death

or as a consequence of his death, but resulting from the wrongful act, neglect or

default and as a consequence of such act or default, Decisions under the Fatal

Accidents Act have interpreted the loss in both the cases as pecuniary loss. In the

present case, there is no claim for compensation of the second category or head,

and it is, therefore, not necessary to consider the same. As regards the first head of

compensation the basic rule is stated to be that the beneficiaries are entitled to

compensation for a pecuniary or material loss from the death Of a person or the

support of which the beneficiaries have been deprived. It appears to us that this

principle provides a sound and reasonable basis in assessing just compensation in

claims under the Motor Vehicles Act. In fact, Shri Chopra, the learned counsel for

the appellants, stated before us, and we think rightly, that the application of this

principle in the present case would be a just and proper one. Shri Chawla, the

learned counsel for the respondents also maintained that this principle has to be

applied in the present case.

(20) WE have, therefore, to see what the just compensation in the present case

would be on applying the above principle to the facts of the present case. Shri

Chawla referred us to an observation of the Supreme Court in the judgment in

Gobald Motor Service Ltd. and another v. R. M. K. Veluswami and others, AIR 1962

S. C. I at page 6. In that case, the Supreme Court is dealing with a claim under the

Fatal Accidents, Act, after referring to the mode of estimating the damages under

the aforesaid first head laid down by Viscount Simon in Nance v. British Columbia

Electric Railway Company Limited observed at: page 6 as follows :-"it would be seen

from the said mode of estimation that many imponderables enter into the

calculation. Therefore, the actual extent of the pecuniary loss to the respondents

may depend upon data which cannot be ascertained accurately, but must

necessarily be an estimate, or even partly a conjecture. 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,. e. , the balance of loss and gain to a dependent by the death must be

ascertained. "

(21) RELYING on the said observation of the Supreme Court, Shri Chawla argued

that, in the present case, the deceased was a young man of 40 years, his date of

birth being 19/12/1921 as shown in the Matriculation certificate (Ex. Public Witness

7/10), that his occupation was business and he Was a partner, in M/s Arjan Dass

Gupta and Brothers, that on a consideration of the assessment orders passed by the

Income-tax authorities, the Claims Tribunal found that the income of the deceased

was about Rs. 1,450. 00 per month, that the said income has not reduced and the

appellants were not deprived of the said income after the death of Shri Sham Lal,

and they did not suffer any pecuniary loss because of the death of Sham Lal, as the

share of Sham Lal was allotted to his wife Ishwari Devi, after the death of Sham Lal,

and Ishwari Devi became the partner of the firm, that the deceased had an

insurance claim of Rs. 30,000. 00 to Rs. 40,000. 00 which was received by the

family, and that therefore, in the circumstances, the question of awarding any more

amount as compensation does not arise, as held by the Claims Tribunal. On the

other hand, relying on the same observation on the Supreme Court, Shri Chopra

contended that the Claims Tribunal found that the deceased was earning Rs. 1,450.

00 per month, that presuming that he was spending Rs. 450. 00 on his person, loss

to the family was Rs. 1,000. 00 per month, that the deceased who was aged 40

years and was in good health at the time of his death could be expected to have

lived for another 25 years, that the loss to the family for twenty five years would

come to about Rs. 3 lakhs, that at the most a sum of Rs. 73,874-25 P. which was

standing as a capital of the deceased in the aforesaid firm may be deducted from the

aforesaid amount of Rs. 3 lakhs that the balance of about Rs. 2,16,000. 00 to be

awarded as compensation to the appellants, and that the alleged insurance claim of

Rs. 30,000. 00 or Rs. 40,000. 00 should not be deducted at all as it was a case of

life insurance of the deceased, for which the deceased himself must have paid the

premium. It is clear from the principle enunciated by the Supreme Court, which, in

our opinion, should be applied in the present case in determining the just

compensation payable to the appellants (applicants), that the pecuniary loss to the

claimants has to be ascertained by balancing the loss to them of the future

pecuniary Benefit and the pecuniary advantage which came to them by reason of

the death.

(22) SHAM Lals income from the firms business was found by the Claims Tribunal

as Rs. l,450. 00 per month. This is not questioned by either of the learned counsel.

How much out of this amount was being spent by Sham Lal for himself and for each

of the appellants (applicants) is a matter for determination according to the

evidence on the record. But, no evidence was let in by either party regarding the

same. In the absence of any evidence adduced by the parties, the court can only try

to guess what the deceased must have been reasonably spending, as there does not

seem to be any other way. There is no evidence in the case to show if Sham Lal was

laying by any portion of his income. In the circumstances, we think we can

reasonably assume that he must have been spending about Rs. 450. 00 for himself,.

e. , for his personal requirements, and about a sum of Rs. 250. 00 towards other

general expenses, leaving a balance of Rs. 750. 00 which he may be taken to have

been spending for appellants (applicants ). Therefore, the loss to the appellants

(applicants) of the future pecuniary benefit which they would have received from

the deceased but for his death may be taken as Rs. 750. 00 per month that is, the

loss of future pecuniary benefit sustained by each of the six applicants was about

Rs. 125. 00 per month.

(23) WE shall now consider if any pecuniary advantage came to any of the

appellants (applicants) by reason of the death of Sham Lal. Such a pecuniary

benefit, if any would have to be deducted from or balanced against the aforesaid

pecuniary loss. It is for the claimants to adduce evidence and show what the income

of the deceased was and what pecuniary loss they had suffered by the death. Once

they adduce such evidence, it is then for the opposite party to adduce evidence and

show what pecuniary advantages the claimants received by reason of the death and

which they would ask the Court to deduct from or balance against the pecuniary loss

shown by the claimants. In the present case, there was neither a pleading nor any

evidence adduced by the respondents regarding the same. They chose to only elicit

from Arjan Dass, A. W. 7, in his cross-examination, by asking him about the share of

Sham Lal in the firm and certain insurance amount. A. W. 7 stated that after the

death of Sham Lal, his share was given to his wife, Smt. Ishwari Dev. The Tribunal

stated in its judgment that Smt. Ishwari Devi became partner in the firm. In other

words all the interest which Sham Lal had in the firms business came to Ishwari

Devi only and not to any of the other applicants. There is nothing on the record

which shows that Ishwari Devi was given the share in the firm and made a partner

for and on behalf of the other appellants also. We have therefore, to proceed on the

basis that Ishwari Devi alone got the advan tage of the share or interest of Sham Lal

in the firm. As regards the insurance amount, A. W. 7 just stated in crossexamination

as under :-"marhum ka Bima Tha. Malum Nahin Hai Kitne Rupaya Ka

Tha. 30/40 Hazar Rupaya Ka Ho Ga, Thik Yad Nabin Hai" (The deceased was

insured. I do not know for how many rupees it was. It might be for Rs. 30/40

thousand; I do not Remember exactly ).

(24) THE said statement is very vague. It is not known whether it was life

insurance simpliciter or whether he was insured for accidents also whether the

insurer nominated any particular individual, and whether the amount was duly

claimed and collected by any or all of the appellants (applicants ). In the absence of

any evidence that the 5 applicants other than the wife got advantage of the said

insurance amount, we consider that the said amount should not be taken into

consideration as against the 5 applicants other than the wife.

(25) THE deceased was aged about 40 years at the time of his death and was

stated to be in good health. It can, therefore, be reasonably assumed that but for

the accident he would have lived up to the age of 60 years. e. for a further period of

20 years. Capitalizing the sum of Rs. 125. 00 per month for 20 years, the pecuniary

loss of each of the appellants would be Rs. 30,000. 00. The wife, Ishwari Devi, got

the husbands share in the firm, the capital value of which, according to A. W. 7,

was Rs. 73. 874. 0025 p. The advantage thus got by her was much more than the

pecuniary loss suffered by her. We, therefore, consider that no further amount of

compensation need be paid to the wife, Ishwari Dev. As regards the children left by

Sham Lal, the eldest son Jagjit Kumar was aged about 19 years and was studying in

Karori Mal College, Delhi, in B. Sc. (Final), the second son, Naresh Kumar, was aged

about 18 years and was studying in Shri Ram College of Commerce in 2nd year, the

daughter, Asha, was aged about 14 years, and was studying in the Nav Bharat

Higher Secondary School. Each of them, as stated above, had suffered a pecuniary

loss of Rs. 30,000. 00 and they have not been shown to have received any

pecuniary advantage by reason of the death of their father.

(26) SHAM Lal also left behind him his father. Mela Ram Malik, who was aged

about 67 years, and his mother, Lakshmi Devi, who was aged about 65 years, on

the date of the application. In view of their ages, we consider that in computing the

pecuniary loss suffered by them, it would meet the ends of justice if the calculation

is made for 5 years and not for 20 years in their cases. So calculated, the pecuniary

loss suffered by each of them would be Rs. 7,500. 00.

(27) IN the case of the daughter, Asha, had the father not died in the accident, he

would have got her married in another 5 or 10 year and she would not have

remained unmarried till the father attained the age of 60 years. Since we have taken

the entire period of 20 years in computing the pecuniary loss in her case, also, we

consider that the expenses for her marriage, which the father might have incurred,

need not be taken into account, in computing the compensation payable to her. No

other head of claim was canvassed before us. However, since the claimants get a

lump-sum, and also because of the uncertainties of life, such as the deceased or the

claimants might die before the expiry of the normal span of life, deduction of 10 to

20 per cent from out of the amount of pecuniary loss has usually been made in

decisions dealing with cases under the Fatal Accidents Act. , vide: Krishnamma v.

Alice Veigos. 366. In our opinion, the reasons for the said deduction are based on

justice and fair play between the parties, and, therefore, a deduction on that account

may be made even in claims made under the Motor Vehicles Act. In the present

case, we think that a deduction of 15% on the ground of lumpsum payment would

be fair and just. Making the said deduction of 15% from the sum of Rs. 30. 000. 00

in the case of each of the 3 children of Sham Lal, the amount of compensation

payable to each of them would come to Rs. 30. 000. 00 minus Rs. 4,500. 00= Rs. 25.

500. 00. Similarly, making the said deduction of 15% from the sum of Rs. 7,500. 00

in the case of each of the parents of Sham Lal, the amount of compensation payable

to each of them would come to Rs. 7,500. 00 minus Rs. l,125. 00--- Rs. 6,375. 00.

(28) IN this appeal, the- eldest son, Jagjit Kumar, who was one of the claimants

before the Tribunal, was added as respondent 6 in the appeal however, as the cause

of action for all the claimants was the same, and we are going to make an order

which ought to have been made by the Claims Tribunal, we are of the opinion that

in exercise of our power under Order 41, Rule 33 read with section 151, Code of

Civil Procedure, we should make an order for compensation in favour of Jagjit

Kumar also in order to do complete justice between the parties.

(29) IN view of our finding that the accident took place on account of the rashness

and negligence on the part of the Driver and the Conductor of the offending bus,

they (respondents 4 and 5) as well as the Municipal Corporation of Delhi and the

Delhi Transport Undertaking (respondents 2 and 3) are liable for the payment of the

compensation to the claimants.

(30) ACCORDINGLY, we allow the appeal, set aside the judgment and order of the

Claims Tribunal, dated 17/3/1966, and order that Jagjit Kumar Malik, Naresh Kumar

Malik, Asha Malik be paid Rs. 25,500. 00 each. , and Mela Ram Malik and Smt.

Lakshmit Devi, parents of Sham Lal, be paid Rs. 6. 375. 00 each, by respondents 2

to 5. The appellants (applicants) are also entitled to their costs throughout payable

by respondents 2 to 5.