M. R. A. ANSARI, J.

( 1 ) THESE two appeals arise out of the judgment of the Motor Accidents Claims Tribunal, Delhi, (hereinafter referred to as the Tribunal ). The appellants in F. A. O. No. 157 of 1968 are the petitioners before the Tribunal and the appellants in F. A. O. No. 136 of 1968 are the respondents before the Tribunal. They will be hereinafter referred to as the petitioners and respondents respectively.

( 2 ) THE petitioners filed an application before the Tribunal under section 110 A of the Motor Vehicles Act, 1939 (hereinafter referred to as the Act) claiming an amount of Rs. 25,000. 00 by way of compensation for the death of their father, Trikha Ram, who is said to have been killed in a motor accident on March 5, 1965. According to the petitioners, the deceased Trikha Ram was going on a cycle on the Magazine Road at about 8. 45 P. M. on 5. 3. 1965. When he approached a culvert on the road, a truck, bearing registration No. DLG 9035, driven by the first respondent, came from the opposite direction at a fast speed and knocked down the deceased and ran over him. The deceased sustained injuries as a result of this accident and succumbed to these injuries a little later. The accident occurred due to the rash and negligent driving of the truck by respondent No. 1. Respondent No. 2, being the owner of the truck, was also liable to pay compensation. With regard to the quantum of compensation the petitioner alleged that the deceased was a vegetable seller earning about Rs. 7. 00 to 8. 00 per day. He was aged 50 years at the time of the accident. The petitioners who are the legal representatives of the deceased estimated the loss sustained by them by the death of the deceased in the accident at Rs. 25,000. 00 and claimed the amount from the respondents by way of compensation.

( 3 ) THE petition was resisted by the respondents on the ground that the accident occurred not due to any rashness or negligence on the part of the driver of the truck but due to the negligence of the deceased himself inasmuch as the deceased was suffering from cataract and was dazzled by the lights of the lorry and knocked against the side of the culvert and fell down in front of the truck.

( 4 ) THE following issues were framed by the learned Tribunal:1. Whether the accident resulting in the death of Trikha Ram was due to rash and negligent driving on the part of respondent No. 1 2. Whether the petitioners are legal representatives of the deceased and are entitled to claim the compensation 3. Whether the deceased was guilty of contributory negligence 4. To what amount, if any, are the. petitioners entitled 5. Relief.

( 5 ) THE petitioners examined a number of witnesses to prove the manner in which the accident occurred and also the earning capacity of the deceased. The respondents did not adduce any oral evidence but contented themselves by filing a certified copy of the judgment of Mr. R. K. Goswami, Magistrate 1st Class, Delhi, in criminal Case No. 120/2 of 24. 6. 1965 to prove that the driver of the lorry respondent No. 1 was prosecuted under section 340 A of the Indian Penal Code in respect of the same accident, but was acquitted by the Court.

( 6 ) ON a consideration of this evidence the learned Tribunal held issue Nos. 1,2 and 3 in favour of the petitioners and against the respondents and on issue Nos. 4 and 5 awarded a sum of Rs. 8,640. 00 by way of compensation in favour of the petitioners. The respondents have filed one of the appeals challenging the said judgment of the learned Tribunal and the petitioners also have filed the other appeal for enhancement of the compensation awarded by the learned Tribunal. It may, at this stage, be said that the Oriental Finance and General Insurance Company which had joined in filing the appeal F. A. O. 136 of 1968 did not press the appeal and the appeal was, therefore, dismissed so far as the Insurance Company was concerned. It is the appeal filed by the second respondent who is the owner of the truck and the appeal that was filed by the petitioners that now survive for consideration.

( 7 ) THE first question for determination in these appeals is whether the petitioners are entitled to claim any compensation in respect of the death of the deceased in the motor accident. In other words, the question is whether the accident occurred due to the rashness or negligence of the driver of the truck or whether it occurred due to the negligence of the deceased himself. The petitioners have examined two witnesses, namely, Public Witness 6 and Public Witness 7, who are alleged to be eye witnesses to the accident. According to these witnesses the deceased was going on cycle on the correct side of the road and that the lorry driven by the first respondent came from the opposite side at a fast speed and suddenly swerved to the wrong side of the road and thereby dashed against the deceased and ran over him. The evidence of these witnesses is assailed on the ground that there were some discrepancies in their evidence. One of the discrepancies pointed out is that whereas according to Public witness 6 the accident occurred after the lorry had crossed the culvert, according to Public Witness 7, the accident occurred before the lorry had crossed the culvert. It is further pointed out that both these versions are contradicted by Public witness 11, the A. S. L, according to whom the accident occurred on the culvert itself. These discrepancies, in my view, are of a very minor character. It is to be noted that the spot where the accident occurred was near a small culvert and it is quite possible for the witnesses to make a mistake regarding the exact spot where the accident occurred. Another discrepancy pointed out by the learned counsel for the respondents is that whereas according to Public Witness s 6 and 7 the lorry was coming on the wrong side of the road, the A. S. I, had stated that he found the lorry on the road itself, thereby implying that the lorry was on the correct side of the road. This again, to my mind. is a very minor contradiction. It is in evidence that the road where the accident occurred is hardly a few paces wide. The question whether the lorry was on the correct side of the road or on the wrong side of the road hardly arises. There is no reason to disbelieve the evidence of these two eye witnesses especially as Public witness 11, A. S.. , has stated that he arrived at the scene of the accident very soon afterwards and found both these witnesses Public Witness s 6 and 7 present. In fact the F.. R. was given by one of these witnesses, namely Public Witness 7, and all the material facts are stated in this report.

( 8 ) APART from the evidence of these eye witnesses, the admitted facts prove the rashness or the negligence of the driver of the truck. The accident occurred at about 8. 45 P. M. when it was dark. The deceased and the truck were approaching from opposite directions. The headlights of the lorry were on. Even if the deceased, on account of the glare from the head lights would not have been able to see properly, the driver of the truck himself was in a position to see the deceased clearly. When he saw the deceased approaching the culvert from the opposite side, it was his duty, as a careful driver, to have slowed down the speed of the vehicle so as to avoid any accident. Instead of doing so he crossed the culvert thereby running the risk of knocking down the deceased. Therefore, the evidence of the eyewitnesses, considered along with other circumstances, is sufficient to prove that the accident occurred entirely due to the rashness or negligence of the driver of the truck.

9 ) THE next question for consideration is the quantum of compensation to which the petitioners are entitled. The petitioners are undoubtedly the legal representatives of the deceased and are competent to file the petition under section 110a of the Act. But the question as to what amount of compensation they are entitled to receive will depend not on their capacity as the legal representatives of the deceased but as dependents of the deceased. If this was a claim under the Fatal Accidents Act, then the legal representatives could claim to be compensated for the pecuniary loss to the estate of the deceased occasioned by the wrongful act of the first respondent. But this is a claim under section 110a of the Act and under the Act it is not the pecuniary loss to the estate of the deceased which determines the quantum of compensation but the pecuniary loss which the petitioners have suffered as a result of the death of the deceased. This distinction has been pointed out by a Division Bench of this Court in Ishwari Devi v. Union of India. In other words it is the pecuniary loss which they have sustained by the death of the deceased that will determine the quantum of compensation. Therefore, the question of compensation will depend upon the earning capacity of the deceased and also the pecuniary benefit which the petitioners were deriving from the income of the deceased. In determining the earning capacity of the deceased at Rs. 200. 00 per month, the learned Tribunal has overlooked the fact that the petitioners themselves in their reply to the application under section 110aof the Act have stated the monthly income of the deceased to be Rs. 180. 00 only. Assuming that the deceased was having this monthly income, what was the amount which the deceased was able to spend upon the petitioners. It is admitted that on the date of the accident all the petitioners were major and were living separately from the deceased. While the first petitioner who was the son of the deceased, was employed as a sweeper in the fire brigade getting a total salary Rs. 110. 00 per month, the other petitioners, who were the daughters of the deceased were all married and living with their husbands. It would, thus appear that none of the petitioners was dependent upon the deceased for their livelihood. Even assuming that the deceased might be expected to give amounts to the petitioners out of his income, how much could the deceased have given to them. The learned Tribunal has estimated the amount which the deceased would have spent upon the petitioners at Rs. 100. 00 per month. I am at a loss to see on what basis the learned Tribunal arrived at this estimate. A person earning only Rs. 180. 00 per month could not be expected to save Rs. 100. 00 per month. The most liberal estimate of his savings cannot exceed Rs. 50. 00 per month. It is this amount only which the deceased could be expected to spend for the benefit of the petitioners. The life span of the deceased has been estimated at 58 years. The deceased was, therefore, expected to, live for eight years more if the accident had not occurred. Therefore, the total amount which the deceased could have saved and which might have been spent on the petitioners would come only to Rs. 4,800. 00.

( 10 ) THE learned Tribunal has discounted 10 percent for lumpsum payment and for uncertainties of life. Therefore, the net amount of compensation to which the petitioners would be entitled cannot exceed Rs. 4,3201. 00. I, therefore, reduce the compensation to Rs. 4,320. 00.

( 11 ) IN the result, the appeal filed by the petitioners, namely F. A. O. 157 of 1968, is dismissed and the appeal filed by the second respondent, namely F. A. O. No. 136 of 1968, is partly allowed. There shall, however, be no order as to costs in either of the appeals.