A.M. AHMADI, J.B. MEHTA

(1) On the morning of 8th May 1972 at about 6.00 A.M. Gordhanbhai Tarjabhai was driving his bullock cart laden with cotton along National Highway No.8 towards Vasad Cross roads with Maheshbhai Ranchhodbhai resting on top of the cotton bales. A speeding Ambassador car No. M.B.C. 7144 driven by one Chandrashekhar K. Nair came from behind and dashed against this bullock cart which was proceeding at a leisurely pace towards Vasad cross roads. As a result of this violent impact from behind the cart driver Gordhanbhai was killed instantaneously. Maheshbhai who was sitting on the top of the cotton was thrown out and sustained injuries. One bullock died on the spot and the other was injured. The cart was reduced to a shambles. The brother and the nephews of the deceased filed a claim application No. 78 of 1972 before the Motor Accident Claims Tribunal Kaira at Nadiad claiming a sum of Rs. 20 0 by way of compensation on the ground that the accident was the direct result of negligence on the part of the driver of the motor car in question. The Claims Tribunal however awarded a sum of Rs. 9 0 by way of compensation from the owner and the insurer of the motor car with interest at 6% per annum from the date of the claim application and proportionate costs. The owner and the insurer being aggrieved by this award made by the Claims Tribunal have preferred the present appeal. The claimants have also filed cross objections claiming an additional amount of Rs. 6 0 on the ground that the Claims Tribunal had failed to award just compensation to them.

(2) The owner and the Insurance Co. of the motor car involved in the accident filed separate written statements contending that the driver of the vehicle got dazzled by the light of the vehicle coming from the opposite direction and as there was no reflector affixed to the cart he could not notice the cart ahead of him and as a result ran into that vehicle. The fact that the car driver Chandrashekhar K. Nair was in the employ of the first opponent Meghjibhai Khimji Vira is not in dispute. The Opponents however deny their liability to pay compensation for the accident to the claimants.

(3) The first question which arises in this appeal is whether the finding of the Tribunal that the accident was the direct result of negligence on the part of the driver of the motor vehicle involved in the accident is well founded. Mr. Majmudar contended that the burden of establishing negligence lay heavily on the claimants and the claimants had failed to discharge the burden inasmuch as they had not led any evidence except the evidence of the sole interested witness Maheshbhai Ranchodbhhai P.W.2 who was himself injured in the accident. His contention was that the Tribunal ought not to have accepted the uncorroborated interested testimony of this witness Maheshbhai to hold that the accident was due to the negligence of the car driver. The accident occurred on the morning of 8th May 1972 at about 6.00 A.M. on National Highway No. 8 at a short distance from the Vasad cross roads. The bullock cart in question was proceeding towards the north and was about 65 ft. south of the Kilometer stone No. 89/2 when this car came from behind and dashed against it. The panchnama showing the physical condition of the place of accident was prepared by the police at about 10-30 A-M. and it shows that the width of the tar road was 22 ft. with 6 ft. wide shoulders on either side. The damaged cart was lying about 28 ft. to the north from the scene of occurrence. The car found at a distance of about 55 ft. to the north with the right side front head light bumper mudguard and wheel plate badly damaged. It is significant to note that the damage is exclusively to the right front side of the vehicle. We have it from the evidence of Maheshbhai P.W. 2 that the car came from behind and tried to overtake the bullock cart from the wrong side i.e. from its left and in the process the collision took place. This part of the evidence of Maheshbhai is corroborated by the fact that the right front side of the motor car is badly damaged. Even if we turn to the written statements filed on behalf of the owner and the Insurance Company the explanation given is that the car driver was dazzled by the front lights of the on coming vehicle and as a result ran into the bullock cart. There is therefore no reason why we should doubt the testimony of Maheshbhai P.W. 2 on which the Tribunal has placed reliance. The driver of the car has not entered the witness box to give his account of the accident. In fact the opponents have not examined any witness to controvert the evidence of Maheshbhai. We are therefore of the opinion that there is no merit in the contention of Mr. Majmudar that the finding of the Tribunal that the accident occurred because of the negligence of the driver of the motor car is not well founded. We therefore confirm that finding.

(4) The deceased Gordhanbhai Tarjabhai had two brothers Chaturbhai Tarjabhai and Somabhai Tarjabhai. Somabhai predeceased him and claimants nos. 2 and 3 are his sons. Claimant no. 1 Chaturbhai died during the pendency of the claim application before the Tribunal without any issue. The two sons of the deceased Somabhai are the legal representatives of Chaturbhai also. Mr. Majmudar raised a neat question of law involving the interpretation of the provisions of secs. 1A and 2 of the Fatal Accidents Act ;855 (hereinafter referred to as the 1855 Act) on the one hand and secs. 110 to 110F of the Motor Vehicles Act 1939 (hereinafter referred to as the 1939 Act) on the other. He argued that a Claims Tribunal inquiring into a claim for compensation in respect of a fatal accident arising out of the use of a motor vehicle must apply the law contained in secs. 1A and 2 of the 1855 Act. According to him the claimants who were the brother (who died pendente lite) and the nephews of the deceased were not dependants under sec. 1A of the 1855 Act as that section recognises only the wife husband parent and child as beneficiaries and hence the claimants cannot maintain an action in damages because of the death of Gordhanbhai. Mr. Desai on the other hand contended that secs. 110 to 110F of the 1939 Act provide a complete Code and all claims for compensation arising out of the use of a motor vehicle would be governed by the aforesaid provisions and the Claims Tribunal was not concerned to look into the provisions of the 1855 Act. According to him the provisions of the 1939 Act confer a right on the legal representatives of the deceased to receive just compensation and therefore the claimants application cannot be thrown out on the ground that the claimants are not persons named in sec. IA of the 1855 Act We must frankly confess the there is a sharp difference of opinion on the trial contentions canvassed before us amongst the different High Courts and we shall presently point out the cleavage.

(5) The first group of cases Bishen Das v. Ram Labhaya and Anr. A.I.R. 1916 Lahore 133 Northern India Transporters Insurance Co. Ltd. v. Smt. Amrawati w/o. Narinder Nath and Anr. A. I. R. 1966 Punjab 288 (F. B.) Smt. Kamla Devi and Ors. v. Kishanchand and Anr. A. I. R. 1970 M. P. 168 P. B. Kader and Ors. v. Thatchamma and Ors. A. I. R. 1970 Kerala 241 Prabha Kumari and Ors. v. Surinder Nath and Ors 1970 A. C. J. 80 (J. and. K) and Dewnan Hari Chand and Ors. v. Municipal Corporation of Delhi and Anr. A.I.R. 1973 Delhi 67 take the view that every claim application for compensation arising out of a fatal accident would be governed by the substantive provisions in secs. 1A and 2 of the 1855 Act and no dependent of the deceased other than the wife husband parent or child would be entitled to commence an action in damages against the tortfeasors.

(6) The second group of cases Perumal and Ors. v. G. Ellusamy Reddiar and Anr 1974 A. C. J. 182 (Madras) and The Venguard Insurance Co. Ltd. v. Chellu Hanumantha Rao and Ors. 1975 A. C. J. 344 (A. P.) steer a middle course and take the view that the provisions contained in sections 110 to 110 of the 1939 Act are adjectival or procedural in nature and they do not impinge upon the substantive provisions contained in sec. 1(A) and 2 of the 1855 Act which alone give a right to the dependents of the victim of a fatal accident to commence an action in damages against the tortfeasors. These cases however draw a distinction between a claim under sec. 1(A) which is restricted to the relatives of the deceased named therein and a claim under sec. 2 which may be brought by representatives of the deceased who are entitled to succeed to the estate of the deceased. In other words these authorities take the view that under sec. 1(A) compensation for wrongful death is strictly limited to the loss suffered by the beneficiaries named therein whereas under sec. 2 the measure of compensation being the economic loss occasioned to the estate of the deceased his representatives would be entitled to claim thereunder.

(7) The third group of cases Mohmammed Habibullah and Anr. v. K. Seethammal A.I.R. 1967 Madras 123 Veena Kumari Kohli v. Punjab Roadways and Ors. 1967 A. C. J. 297 and Smt. Ishwar Devi Malik and Ors. v. Union of India and Ors. A. I. R. 1969 Delhi 183 take the view that a claim for compensation arising out of the use of a motor vehicle would be exclusively governed by the provisions of secs. 110 to 110F of the 1939 Act and bears no connection to claims under the 1855 Act and the claims Tribunal need not follow the principles laid down under the latter Act.

(8) The point which we are called upon to decide in this First Appeal is not covered by any decision of this court; at least our attention has not been invited any such decision. We therefore propose to examine the rival points of view unaided and unhampered by authority. In order to appreciate the contentions of the learned counsel it is necessary to peep into the past for a while and capitulate the position in law as obtaining before the enactment of the 1855 Act. It is well known that under the Common Law of England no action could be laid by the dependents or heirs of a person whose death was brought about by the tortious act of another on the maxim actio personalis moritur cum persona although a person injured by a similar act could validly claim damages for the wrong done to him. That is why it was commented that it was cheaper to kill than to maim the classic illustration to it being provided in Baker v. Bolton (1808) Camp 493 That was a case of a couple husband and wife travelling in an omnibus which turned turtle because of the negligence of the driver of the said vehicle. The husband escaped with minor injuries but the unfortunate wife passed way. The husband could successfully sue the defendants in damages for the injuries sustained by him but he had no remedy for the death of his wife. It did seem rather illogical that a husband could claim damages on being deprived of the company of his wife temporarily but not if the company was lost for ever. At common law this dictum was followed right upto 1846 and even thereafter with the exception of Jackson v. Watson and Sons (1909) 2 K. B. 193 in which case the plaintiff was awarded compensation for breach of contract on the death of his wife who ate the defendants tinned salmon. This unfortunate situation was remedied in England by the passing of the Fatal Accidents Act 1846 popularly known as Lord Campbells Act. The inroad made by Lord Campbells Act into the maxim actio personalis moritur cum persona was made absolute by the Law Reforms Act 1934 which has rendered the maxim obsolete. The rule in Baker v. Bolton was followed in all countries including India where the English Common Law applied. Hot on the heels of Lord Campbells Act the Indian Legislature enacted the Legal Representatives Act 1855 (Act no. 12 of 1855) and the Fatal Accidents Act 1855 (Act No. 13 of 1855) both of which came into force on the same day namely March 27 1855

(9) The 1855 Act is fashioned on the lines of the English Act of 1846 The preamble of the 1855 Act states the reasons for its enactment. If says that where no action or suit is now maintainable in any court against a person who by his wrongful act neglect or default may have caused the death of another person and it is often times right and expedient that the wrong doer in such cases should be answerable in damages for the injury so caused by him it has become necessary to make provision giving a right to the dependents named therein to maintain an action in damages in respect of a death arising out of a fatal accident. It becomes at once clear that the law as it stood before the enactment of the 1855 Act precluded action for recovery of damages being brought on the death of a person occasioned by the wrongful act of another. Sec. 1A of the 1855 Act is divided in three paragraphs. The first paragraph confers a new right and provides that when ever the death of a person shall be caused by the wrongful act neglect or default and the act is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof the party who would have been liable if death had not ensued shall be liable to an action or suit for damages notwithstanding the death of the person injured and although the death shall have been caused under such circumstances as amount in law to felony or other crime. This statutory enactment has the effect of removing the protective umbrella thrown by the maxim actio personalis moritur cum persona and makes the tortfeasor; whose wrongful act has caused death liable in damages. The second paragraph of that section says that every such action or suit shall be for the benefit of the wife husband parent and child if any of the person whose death shall have been so caused and shall be brought by and in the name of the executor administrator or representative of the person deceased. The third paragraph then provides that in every such action 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 the amount so recovered after deducting all costs and expenses including the cost not recovered from the defendant shall be divided amongst the before mentioned parties or any of them in such shares as the court by its judgment or decree shall direct. Sec. 2 of the 1855 Act which is in the nature of a proviso says that not more than one action or suit shall be brought for and in respect of the same subject matter of complaint. It is further provided that in any such action or suit the executor 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 which sum when recovered shall be deemed part of the assets of the estate of the deceased. It is lastly provided by sec. 3 that the plaint in any such action or suit shall give particulars of the person or persons for whom or on whose behalf such action or suit shall be brought and of the nature of the claim in respect of which damages shall be sought to be recovered. It is clear on a plain reading of there provisions that the 1855 Act makes provisions for two distinct kinds of damages. Under sec. 1A the damages are recoverable for the loss occasioned to the dependants of the deceased by his death while under sec. 2 the damages are awardable for the pecuniary loss resulting to the estate of the deceased.

(10) The Legal Representatives Suits Act (No. 12 of 1855) was enacted to enable executors administrators or representatives to sue and be sued for certain wrongs (which according to the existing law did not survive) causing pecuniary loss to the estate of a deceased person where action might have been maintained by such person for compensation for such wrong during his life time. Again by sec. 306 of the Succession Act the right to prosecute any action or proceeding existing in favour of a person at the time of the decease is made to survive to his executors or administrators except causes of action for personal injuries not causing the death of the party. A plain reading of this section undoubtedly shows that the cause of action regarding personal injuries causing the death of the party enures after his death to his executors or administrators the maxim actio personalis moritur cum persona notwithstanding.

(11) The 1855 Act although brought on the statute book with effect from March 27 1855 has not undergone any change. To quote the words of Krishna Iyer J. (as he then was) in P. B. Kadar and Ors. v. Thatchamma and Ors. (A.I.R. 1970 Kerala 241) the Act is a trifle archaic in form and somewhat obsolescent in content. Under the Indian Act which is largely modelled on the English statute of 1846 brothers and sisters are not entitled to rank as dependants although in England the mother country (I mean of the statute) by sec. 2 of the Fatal Accidents Act 1959 brother sister uncle and aunt of the deceased and the issue of such relatives have been inducted into the area of statutory dependency. The other progressive amendments to the English statute also have not been copied in our country. It is however necessary to note that with the advent of the motor car and the rapid increase in its number heavy demands were made on our otherwise narrow roads increasing the number of accidents in their endeavour to unceremoniously push out pedestrains and slow moving vehicles on the edges. The motor accidents involving third parties were ever on the increase and that compelled the Legislature to step in to provide for compulsory insurance in respect of third party risk. Secs. 94 to 97 of the 1939 Act make substantive provisions to compel the owners of motor cars to take out insurance policies to safeguard the interest of the third parties who become victims of negligent driving of motor vehicles. It is indeed true that before the introduction of secs. 110 to 110F in the 1939 Act claims arising out of the fatal accidents involving the use of motor vehicles were governed by the substantive provisions contained in the 1855 Act. Sec. 110 which was brought on the statute book by Act No. 100 of 1956 provides for constitution of Claims Tribunal 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 sec. 110F next provides that an application for compensation arising out of an accident of the nature specified in sub-sec.(1) of sec. 110 may be made by the person who has sustained the injury or where death has resulted from the accident by all or any of the legal representatives of the deceased; sec. 110B next provides that the Claims Tribunal shall hold an inquiry into the claim and may make an award determining the amount of compensation which appears to it to be just and specify the person or persons to whom compensation shall be paid. It is further provided that in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them as the case may be. The Tribunal is empowered by sec. 110C to award simple interest at such rate and from such date as it may specify on the claim allowed. Sec. 110E provides for the recovery of the compensation money from the insurer as arrears of land revenue.

(12) There cannot be any gainsaying that the 1939 Act makes provision for the constitution of the Claims Tribunal to provide a cheap and speedy mode of enforcing liability arising out of the use of motor vehicles. It is a benevolent legislation which calls for liberal and broad interpretations that the real purpose under lying the enactment of secs. 110 to 110F is achieved and full effect is given to the legislative intent. It is well settled that if while interpreting a welfare legislation any provision of the Act is capable of two constructions that construction should be preferred which furthers the policy of the Act and is more beneficial to the class in whose interest the law has been made. The contention that the group of secs. 110 to 110F merely lays down the procedure and powers of the Tribunal and do not deal with liability at all in other words they are merely adjectival or procedural in nature does not seem to be wholly correct. The first paragraph of sec. 1A of the 1855 Act no doubt has the effect of nullifying the principle contained in the maxim actio personalis moritur cum persona. The second paragraph of that section merely provides that every action or suit shall be brought for the benefit of the wife husband parent and child if any of the person whose death shall have been so caused. The 1939 Act makes an inroad in so far as the second paragraph of sec. 1A of the 1855 Act is concerned in that sec. 110A thereof provides that an application for compensation arising out of an accident of the nature specified in sub-sec. (1) of sec. 110 may be made where the death has resulted from the accident by all or any of the legal representatives of the deceased. The proviso says that if all the legal representatives of the deceased do not join in the application the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased. It is therefore clear on a plain reading of sec. 110A of the 1939 Act that the right to apply for compensation where death has resulted from the accident is conferred on all the legal representatives of the deceased. If paragraph 2 of sec. 1A of the 1855 Act is a substantive provision as was contended before us by Mr. Majmudar we fail to understand why cl. (b) of sub-sec. (1) of sec. 110A which confers a right on the legal representatives of the deceased to claim compensation cannot be termed to be a substantive provision. The 1939 Act is undoubtedly a special legislation dealing with accidents arising out of the use of motor vehicles. According to the cardinal rule of construction a particular or special rule must control or cut down the general rule Bengal Immunity Co. Ltd. v. State of Bihar and Ors. A.I.R. 1955 S. C. 661). We have therefore no doubt in our minds that cl. (b) of sub-sec. (1) of sec. 110A of the 1939 Act is a substantive provision which confers a right on all the legal representatives of the deceased victim of a tortious act to claim compensation from the wrong doer and being a special provision dealing with accidents arising out of the use of motor vehicles it has the effect of over riding paragraph 2 of sec. IA of the 1855 Act.

(13) We have noticed earlier that sec. 1A of the 1855 Act provides that the quantum of damages shall be proportioned to the loss resulting from the death to the dependents. The limits of the courts discretion in fixing the amount of damages in such cases have been clearly demarcated by the Legislature by the use of the words the court may give such damages as it may think proportionate to the loss resulting from such death to the parties. On the other hand sec. 110B of the 1939 Act provides that the Claims Tribunal shall make an award determining the amount of compensation which appears to it to be just By this provision the concept of just compensation has been introduced. Under the third paragraph of sec. 1A of the 1855 Act the compensation to be awarded must be proportioned to the loss resulting from the death to the parties for whom and for whose benefit the action is commenced whereas under sec. 110B of the 1939 Act the legal representatives of the deceased victim of a fatal accident caused by a motor vehicle are entitled to just compensation. The words of limitation circumscribing the courts discretion under sec. 1A of the 1855 Act to award damages proportioned to the loss resulting to the dependants from death would clearly debar considerations of contributory negligence and the like which enter the field in the matter of assessment of compensation under the 1939 Act. There can therefore be no doubt that sec. 110B of the 1939 Act gives wider scope to the Claims Tribunal in the matter of assessment of compensation and we do not find limitative words as are noticed in the third paragraph of sec. 1A of the 1855 Act. If the third paragraph of sec. 1 of the 1855 Act is a substantive provision as submitted by Mr. Majmudar we fail to understand why sec. 110B of the 1939 Act which also deals with the same subject cannot be said to be a substantive provision. It is not necessary to repeat that sec. 110B of the 1939 Act being a special provision shall override the general provision contained in paragraph 3 of sec. IA of the 1855 Act.

(14) For the above reasons we are inclined to think that the introduction of secs. 110A to 110F in the 1939 Act have brought about certain radical changes impinging upon the provisions contained in secs. 1A and 2 of the 1855 Act. We therefore cannot agree with the learned counsel for the appellants that the change brought about by the introduction of sect ions 110A to 110F in the 1939 Act was merely adjectival or procedural in nature. We are therefore of the opinion that cl. (b) of sub-sec. (1) of sec. 110A and sec. 110B of the 1939 Act clearly deal with substantive law and being wider in scope than sec. 1A and 2 of the 1855 Act must prevail over the general law. In view of the difference in the language of secs. 1A and 2 of the 1855 Act and secs. 110A and 110B of the 1939 Act we are of the opinion that the latter Act being a special Act must over ride the general law contained in the former Act.

(15) Considerable reliance was placed by Mr. Majmudar on the decision of the Supreme Court in New India Insurance Co. Ltd. v. Smt. Shanti Misra A. I. R. 1976 S.C. 237. In that case accident occurred on 11th September 1966 in which Shri Amar Nath Misra met his death due to collision between his motor cycle and a truck. Cause of action accrued to the widow and children of the deceased to claim compensation under the 1855 Act. A suit could have been brought under Art. 82 of the Limitation Act 1963 within two years of the occurrence but in the mean time the Govern ment of Uttar Pradesh constituted a Claim Tribunal under sec. 110 of the 1939 Act by a notification published on 18th March 1967 The claim application was filed under sec. 110A on 8th July 1967 and the appellants objectted to the jurisdiction of the Tribunal to entertain the application. The Tribunal spurned the objection whereupon the appellants filed a writ petition in the High Court which was allowed by a single Judge. In appeal filed against that decision there was a difference of opinion between the two Judges constituting the Division Bench and on a reference to a third Judge the view taken by the High Court was that the Tribunal had jurisdiction to entertain the application. It will appear from these facts that the contention before the Supreme Court was limited to the question of jurisdiction of the Tribunal to entertain the claim application cause of action for which accrued before its constitution 11th September 1966 Dealing with this question the Supreme Court after referring to the relevant provisions of secs. 110 and 110F of the 1939 Act observed as under:

On the plain language of secs. 110A and 110F there should be no difficulty in taking the view that the change in law was merely a change of forum i.e. a change of adjectival or procedural law and not of substantive law. It is a well established proposition that 110 a. change of law operates retrospectively and the person has to go to the new forum even if his cause of action or right of action accrued prior to the change of forum. Dealing with the expressions arising out of an accident occurring in sub-sec. (1) and over the area in which the accident occurred mentioned in sub-sec. (2) the Supreme Court observed that they clearly show that the change of forum was meant to be operative retrospectively irrespective of the fact as to when the accident occurred. The provision of limitation of 60 days contained in sub-sec. (3) did not constitute an impediment because in the opinion of the Supreme Court the delay could be condoned under the proviso. It is therefore clear that the Supreme Court considered the language of secs. 110A and 110F for the limited purpose of determining the question of jurisdiction and it was never called upon to consider the effect of cl. (b) of sub-sec. (1) of sec. 110A and sec. 110B of the 1939 Act quo secs. 1A and 2 of the 1855 Act. We are therefore of the opinion that the decision of the Supreme Court on which considerable reliance has been placed by Mr. Majmudar has no application to the facts of the present case and that decision is not an authority for the proposition that the aforesaid sections do not deal with substantive law.

(16) For the above reasons we are of the view that that present claim application by the nephews of the deceased Gordhanbhai Tarjabhai is clearly maintainable. It was not contended by Mr. Majmudar that the claimants were not the legal representatives of deceased Gordhanbhai We therefore agree with the view taken in the third group of cases namely Mohmammad Habibullah and Ors. v. K. Seethammal A.I.R. 1967 Madras 123 Veena Kumari Kohli v. Punjab Roadways and Ors. 1967 A.C.J. 297 and Smt. Ishwar Devi Malik and Ors. v. Union of India and Ors. A.I.R. 1969 Delhi 183 on the principal contention regarding the maintainability of the claim application by the nephews of the deceased.

(17) Now to the question of assessment of compensation. The claimants claimed an amount of Rs. 20 0 in the claim application. The Tribunal has awarded Rs. 9 0 with 6 per cent interest and proportionate costs. The original claimants have filed cross objections claiming an additional amount of Rs. 6 0 Mr. Desai pointed out that so far as the bullock which succumbed to the injuries is concerned the claim was for Rs. 1 0 based on the receipt ex. 46 which evidences that the bullock was purchased for Rs. 1100.00 on Falgun Vad 10 of S.Y. 2025. In the panchnama ex. 34 the estimated value of the bullock is Rs. 700.00. The Tribunal has awarded a sum of Rs. 700.00 on the ground that the bullock was used for agricultural purposes upto May 8 1972 after its purchase and secondly because its value was estimated at Rs. 700.00 in the panchnama. Now so far as the panchnama is concerned it is merely an estimate and can be relied upon in the absence of any other reliable evidence. It is true that the bullock was used for agricultural purposes upto May 8 1972 but then expenses had to be incurred for its maintenance upto that time. Since it was purchased for Rs. 1100.00 we are of the opinion that the Tribunal ought to have awarded a sum of Rs.1 0 for the loss of the bullock. The second bullock was injured as is clear from the evidence of Ranchhodbhai Somabhai Patel and Maheshbhai Ranchhodbhai Patel. The former deposes to have spent a sum of Rs. 200.00 for the treatment of the injured bullock. There is practically no cross examination on this point. That is the claim made in the claim application also. The Tribunal has not awarded any amount on the ground that there is no reliable evidence. A statement made on oath if not contested in cross examination can be accepted without demur. We therefore think that this claim should be allowed. The claimants have claimed a sum of Rs. 1 0 for damage to the cotton which was being carried in the cart at the time of the accident. The cotton loaded in the cart was a well known Shanker 4 variety. It appears from the panchnama ex. 34 that after the accident cotton was found littered all over the road near about the place of the accident. Witness Ranchhodbhai Somabhai Patel has deposed that cotton worth Rs. 1 0 was rendered useless because of the accident. Making some allowance for exaggeration there being no independent evidence in this behalf we are inclined to think that at least a sum of Rs. 500.00 ought to have been allowed by the Tribunal. Mr. Desais main grievance was that the Tribunal has allowed a meagre amount of Rs.4 0 as against the claim of Rs.13 0 for loss to the estate and dependancy benefit. The evidence shows that the family had 9 Bighas of land under cultivation. In addition the deceased Gordhanbhai was cultivating an extra field of about 6 Bighas fetching an income of Rs. 900.00 per annum. The exact age of the deceased is not on record but the evidence permits an inference that he was aged about 55 to 60 years on the date of the accident. By his death the income of Rs. 900.00 per annum is completely lost to the family. Besides after his death a labourer was required to be hired on a salary of Rs. 100.00per month i.e. Rs. 1200.00 per annum. It is true that the deceased was spending about Rs. 2 0 for his maintenance. It is also true that the agricultural income from the field admeasuring about 9 bighas has not diminished after the death of Gordhanbhai. There can however be no doubt that the services of Gordhanbhai have been lost to the family. The family has to spend an extra amount of Rs. 1200.00 per annum by way of salary to the hired labourer. The income of Rs. 900.00 per annum from the other field of 6 Bighas is totally lost. In these circumstances there is justification in the contention of Mr. Desai that the award of Rs. 4 0 as against the claim of Rs. 13 0 is extremely low. Even if we multiply the loss of Rs. 1200.00 per annum by a multiple of 5 the amount works out to Rs. 6 0 Since the claimants are earning members we do not propose to assess the compensation as liberally as we would have done in case of a widow and minor children. Even this conservative assessment enhances the total amount of compensation from Rs. 9 0 to Rs. 12 500

(18) In the result therefore the appeal is dismissed with costs. The cross objections are partly allowed in that the original claimants will be entitled to additional amount of Rs. 3 500 by way of compensation. The award of the Claims Tribunal will therefore be modified in that the figure Rs. 12 500 will be substituted for the figure Rs. 9000.00 in the award. The claimants will get full costs on the cross objections in this court.