R.N. Misra, J.

1. This is an appeal under Section 110 D(1) of the Motor Vehicles Act (hereinafter referred to as the Act). The claimant is the Appellant and the appeal is directed against the order of the Motor Accidents Claims Tribunal, Cuttack, dismissing the claim for compensation.

2. Late Subhash Chandra Pati was an Assistant Engineer in the employment of the State Government of Orissa. By May, 1968 he was working as Deputy Engineer (Project) in the Orissa Construction Corporation on deputation basis. In Connection with the visit of the Public Accounts Committee of Orissa, Subash along with some other employees of the Orissa Construction- Corporation had gone to Bhutmundi on 4.5.68. Round about 10 Oclock at night the employees of the Orissa Construction Corporation including Subash and P. Ws. 4 and 5 were returning in two jeeps. Subash was traveling in Jeep O.R.C. 7380 along with P.W. 5 and that vehicle was being driven by one Debaraj Sahu. Subash was on the extreme right and P.W. 5 was in between the driver and Subash on the first seats. P.W. 4 along with some others was returning in jeep O.R.C. 7381 which was coming behind O.R.C. 7380. These two jeeps were returning on the Paradeep Cuttack road towards Cuttack. Near about Kandarpur, a few miles to the east of Cuttack, a Leyland truck bearing registration No. O.R.C. 7068 belonging to the Respondent No. 1 and coming from Cuttack side towards Paradeep dashed against jeep O.R.C. 7380. As a result of this collision, the right front wheel of the jeep was severed from the vehicle. Subash was thrown out to the right while the driver and another occupants of the jeep (P.W. 5) were thrown to the left, Subash sustained fatal injuries and when he was taken to the S.C.B. Medical College Hospital, a little later in the other jeep he was pronounced dead by the medical officer.

The claimant, his widow, laid claim for compensation under Section 110A of the Act on her behalf as well as on behalf of a minor son and two minor daughters. Compensation of Rs, 2,34,600/- was claimed. It was alleged that the accident took place solely on account of the negligence of the truck driver who drove his vehicle at great speed, did not move to the left of the road when both the vehicles were to cross each other and on the other hand suddenly swerved to the right and dashed against the jeep.

3. The owner of the vehicle and also the insurer who are the Respondents 1 arid 2 respectively filed separate written statements. The owner claimed that the driver of the jeep was negligent and there was enough space to the left and if he had controlled the speed of his vehicle and kept to his left he could have safely crossed the truck. The truck was loaded and was running at the minimum speed. At the time of impact the driver of the truck made the vehicle almost stationary and had he not taken due care and caution to avoid the consequences of the negligent act of the driver of the jeep that vehicle along with its occupants would have been smashed.

The insurer in a separate written statement pleaded that the jeep was on the wrong side and was being driven by the deceased unauthorisedly. The accident took place on account of rash and negligent driving of the deceased, the driver of the truck had taken due care and caution and the claim laid was arbitrary and fantastic.

4. Five issues were raised on the pleading of the parties by the Tribunal. Issues 2 and 3 were as follows:

(2) Which of the two vehicles is responsible for causing the accident and consequently death of Subash Chandra Pati

(3) Was there any contributory negligence on the part of the deceased

In supports of the Appellants claim seven witnesses were examined. P.W. 1 is the Motor Vehicle Inspector. P.W. 2 came from the S.C.B. Medical College Hospital to prove the injuries of Subash. P W. 3, an assistant in the Orissa Construction Corporation, proved the salary drawn by the deceased, P.W. 4 as already stated was traveling in the jeep O.R.C. 7381 which was running behind the ill-fated jeep at the time of accident. P.W. 5 was traveling along with Subash in the same jeep O.R.C. 7380,. P.W. 6 is the Appellant. P.W. 7 is a photographer who after the accident had been taken to the spot and had taken the photographs M. Os. 1 to VII, the negatives whereof have been marked as M. Os. VIII to XIV. The owner of the vehicle withdrew from the contest at the time of trial. The insurer examined one witness who described himself as the Development Officer of the Insuring Company.

The Tribunal took up issues 2 and 3 only for consideration and came to find that the driver of the jeep was negligent in turning the jeep towards the right and colliding with the truck. Accordingly it dismissed the application for compensation. This appeal is directed against the aforesaid order of the Tribunal.

5. Dealing with the provisions of compensation provided in chapter VIII of the Act, a Full Bench of Madhya Pradesh High Court in Mangilal v. Parasram 1970 A.C.J. 86 has stated, "From the above resume of all the sections contained in Chapter VIII of the Motor Vehicles Act, it must be said, in short, that Sections 94 to 96 provide for compulsory insurance of a motor vehicle, before it can be used on a public road; lay down the liability of the Insurer to pay to the claimant directly, when there is a decree or judgment of the Court and also fix the limits of pecuniary liability of the insurer in certain cases. Sections 110 to 110-F lay down the procedure for enforcement of the substantive rights of the claimant as enlarger and circumscribed by Section 96. As provided in Section 110-B, the Accidents Claims Tribunal shall in its award determine the total amount of compensation and then specify the sum which shall be paid by the insurer. And, by virtue of Section 110-E, the latter sum is recoverable from the insurer as arrears of land revenue. However, the ingredients of the liability of the insurer are nowhere provided in this special statute. Necessarily, therefore, that aspect of the matter will be governed by the general substantive law, which remains untouched by this special law. We have already shown that it is on the contract of indemnity that the insurer is liable to pay compensation only if the insured is liable to pay damages to the claimant. If the insured is not liable, then the insurer is also not liable. In other words, the liability of the insurer depends upon the liability of the insured. Now, the liability, direct or vicarious, of the owner of a motor vehicle involved in an accident resulting in injury to, or death of, a third party, to pay damages arises from the law of torts. Under that law negligence of the owner of driver is the sine qua non for such liability.... From the mere statutory requirement of insurance, without which a vehicle cannot be used, there can be no inference of absolute liability, independent of proof of negligence.... It is true that the provisions of the Motor Vehicles Act do not lay down affirmatively that negligence must be proved before the insurer is held liable to pay the claim and compensation. But this is because that Act is not intended to substitute the law of torts in its application to the case of an accident."

To the same effect is the decision of this Court in Oriental Fire and General Insurance Co. Ltd. v. Kamal Kamini 1972 A.C.J. 92. We accordingly enforce the view taken by the claims Tribunal that the claim of compensation is dependent upon negligence on the part of truck driver being found.

6. The Appellant has seriously disputed the finding of the Tribunal that it is the negligence of the driver of the jeep which brought about the accident. The oral evidence of P. Ws. 1, 4 and 5 and the spot map prepared by P.W. 1 (Ext. 1) and the photographs M. Os. I to VII are the relevant evidence on record for determining the case of negligence. From the evidence of P.W. 1 it appears that at the spot where the accident took place the pitch portion of the road was 21 6". The sides which were earthen road were 3 on each side. Thus the road had a total width of 27.

The Motor Vehicle Inspector in the spot map (not drawn to scale) has indicated that the jeep was on the left side of the road. He has also indicated that truck had been parked on the left side of the road at some distance. In his evidence he has stated that the truck was on the middle of the road while the jeep was on its left side. There was no skid mark on the road and the truck had stopped at a distance of about 250 from the jeep. He has further stated that he found the jeep stationary at the spot of occurrence. This must have been, so because the front right wheel had been served off the vehicle as a result of the impact of collision.

P.W. 5 has stated that he found the truck moving on the middle of the road immediately prior to the accident. According to him, the truck was running at a speed of about 70 kilometers per hour. The jeep was coming on the left side of the road. The truck did not move towards its left and while the jeep was about to cross it the truck suddenly swerved to the right as a result whereas the right side of the truck dashed against the right side of the jeep.

P.W. 4 in paragraph 4 of his evidence has stated that he had not seen how exactly the accident took place. Their vehicle was running at some distance and they arrived at the spot after the collision had taken place. By the time he came to the spot he found the jeep was lying in a damaged condition on the left side of the pitch portion of the road. This evidence of P. W. 4 has been given much weight by the tribunal in coming to its conclusion that the driver of the jeep was negligent. He obviously overlooked the fact that by then the accident had already taken place and the position of the jeep as found by P. W. 4 was as a result of the collision and that was not the position when, the jeep was being driven.

7. The Motor Vehicle Inspector found no skid mark on the road. According to him the truck had been brought to a stop a distance of about 250 from the place of accident P. W. 4 has also stated that when his jeep was coming behind the ill-fated one after the accident he found the truck rushing at the jeep. This evidence clearly indicates that the truck was running at great speed and no attempt had been made by the driver of the truck to control the speed or bring the vehicle to a stop immediately before, or even at the time of collision.

The Motor Vehicle Inspector has found that the jeep came to a stand-still and had not been moved away from the spot of occurrence. This evidence deserves to be accepted because admittedly the right front wheel of the jeep was severed off from the body of the vehicle as a result of collision and with three wheels left the jeep could not have moved away except as the result of the impact only. The jeep has been found after the accident to be in a slating posture-its backside on the extreme left of the road and its engine portion facing towards the centre of the road. While running before the accident the jeep could not have taken such position. Obviously that position has been brought about as a result of the accident P. W. 4s evidence that after the accident he saw the front side of the jeep a little towards the right of the road, thereafter is of no material import.

8. The consistent evidence in this case is that the deceased was thrown to the right of the jeep. The Tribunal has discarded this aspect of the case, and we must say, without any basis at all. The evidence indicates that the deceased was the occupant of the right front seat. The driver was on the left hand drive wheel. P. W. 5 sat in between. Immediately with the collision the right wheel was blown off and the jeep must have turned to the right side having lost its normal balance. As an impact of the dash the driver on the left side was thrown out. P. W. 5 sitting in the middle went to the left and Subash came on the right. There is no evidence to the contrary. In view of the consistent evidence on the point and nothing unnatural therein we hold that the claimants evidence on the point has to be accepted. Subash fell down on the right side while the driver and P. W. 5 went to the left side of the road.

9. The jeep was being driven at a speed of 45 kilometers per hour as spoken to by P. W. 4. This obviously was a statement with reference to his jeep. The ill-fated jeep was running ahead at a distance of 200 yards. Obviously, therefore, the speed of the jeep must also have been about 45 kilometers. There is clear evidence to show that the truck was running at a greater speed and was on the middle of the road until the point of accident when it swerved to the right which caused the accident. The Tribunal has come to the conclusion of want of negligence on the part of the truck driver by saying that there was no evidence that the driver of the truck swerved to the right so suddenly that it was impossible for the driver of the jeep to avoid the accident if the jeep had been under proper control. This again seems to be a finding contrary to the evidence on record. "As we have already indicated, P. W. 5 has said that immediately prior to the accident he had found truck moving on the middle of the road and as the jeep came to cross it keeping on the left side of the road, the truck running at the speed of 70 kilometers per hour swerved towards the jeep which led to the collision. The swerving to the right was certainly sudden leaving no time for the driver of the jeep to keep out of danger.

10. Under Section 78 of the Motor Vehicles Act.

(i) Every driver of a motor vehicle shall drive the vehicle in conformity with any indication given by a mandatory traffic sign and in conformity with the driving regulations set forth in the Tenth Schedule, and shall comply with all directions given to him by any police officer for the time being engaged in the regulation of traffic in any public place.

The first regulation in the Tenth Schedule runs thus:

The driver of a motor vehicle shall drive the vehicle as close to the left hand side of the road as may be expedient and shall allow all traffic which is proceeding in the opposite direction to pass him on his right hand side.

Therefore the duty cast on the drivers of the two vehicles was that the truck should have gone to its left and the jeep should have also been on its left. There is sumptuous evidence on record to show that while the jeep was driven on its left the truck, prior to the point of accident, was on the middle of the road and at the time of accident swerved to further right. It was an open road without any other vehicle or pedestrians. Therefore, a speed of about 45 kilometers per hour on such a road while negotiating the crossing with the truck was certainly not any unusual speed. On the other hand, the speed of the truck was too much and the vehicle could not be brought to a stop upto a distance of 250 or so even after the collision. On the basis of the evidence on record we have no doubt in our mind that it was the truck which was at fault and not the jeep. Negligence of the truck driver was responsible for the accident.

11. The Tribunal lost sight of the doctrine of res ipsa loquitur and committed to apply it to the facts of the case. In Gobald Motor Service v. Veluswami : A.I.R. 1962 S.C. 1 Their Lordships of the Supreme Court quoted with approval the principle stated in Halsburys. Laws of England, Volume 23, at page 671, paragraph 956 which reads.

An exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the Plaintiff occurs wherever the facts already established are such that the proper and natural inference immediately arising from them is that the injury complained of was caused by the Defendants negligence, or where the even charged as negligence tells its own story of negligence on the part of the Defendant, the story so told being clear and unambiguous. To these cases the maxim res ipsa loquitur applies. Where the doctrine applies, a presumption of fault is raised against the Defendant, which, if he is to succeed in his defence, must be over come by contrary evidence, the burden on the Defendant being to show how the act complained of could reasonably happen without negligence on his part. Where, therefore, there is a duty on the Defendant to exercise care, and the circumstances in which the injury complained of happened are such that with the exercise of the requisite care no risk would in the ordinary course of events ensure the burden is in the first instance on the Defendant to disprove his liability. In such a case if the injurious agency itself and the surrounding circumstances are all entirely within the Defendants control, the inference is that the Defendant is liable, and this inference is strengthened if the injurious agency is inanimate.

A Full Bench of the Madhya Pradesh High Court in Mangilal v. Parasram 1970 A.C.J. 86 referring to the application of this doctrine stated.

There can be no doubt that in an action for negligence, the legal burden of proof rests on the claimant. But barring exceptional cases, it may not be possible for the claimant to know what precisely led to the accident. It may peculiarly be within the means of knowledge of the driver of the owner. This hardship to the claimant can be avoided by the application of the maxim res ipsa loquitur which is not a principle of liability but a rule of evidence. The principle is that there were certain happenings which do not occur normally, unless there is negligence. Therefore in the case of such happenings, the claimant is entitled to rely, as evidence of negligence upon the mere happening of such accident.

On the positive evidence on record the field for application of this rule have been well founded and the Tribunal went wrong in not looking to the Defendant to establish his defence of want of negligence on the part of the truck driver.

12. The Tribunal indicated and the learned Counsel for the Respondent argued before us that adverse inference has to be drawn against the claimant for non-examination of the driver of the jeep. The jeep in question was a Government vehicle. With the death of the deceased the connection of the claimant with the Government department comes to an end. It is not the case of the owner of the vehicle that the driver who was driving the truck was no more in his service. As between the two the burden was on the Defendant to examine the driver even without the application of the doctrine res ipsa loquitur, and with the application of the said rule the Defendant has to establish the fact of want of negligence. Greater is the room for drawing adverse inference against the owner of the vehicle for non-examination of the driver to establish the defence. On an examination of the facts of the case and the law on the point we, therefore, hold in disagreement with the Tribunal that the accident took place on account of the negligence of the Jeep driver. The truck driver was duty bound to take his vehicle to the left of the road which he failed to do. Instead of moving to the left at the point of accident the truck suddenly swerved to the right bringing about the collision.

13. Issue No. 3 before the Tribunal was about the contributory negligence. Mr. Patnaik for the insurer-Respondent contended that where there was a head-on collision the liability must of both the vehicles and the finding must be that there was contributory negligence. We have already found that the jeep was on the proper side and the driver of the jeep had complied with the requirement of Section 78 of the Act and regulation in the Tenth Schedule whereas the Truck driver had failed to comply with such requirement. When the truck driver noticed that there was an approaching jeep he was duty bound to reduce its speed, keep to its portion of the road giving clear passage for the approaching jeep to cross. If the driver persists in driving the truck on the middle of the road there is a breach of the rule of the road. To the facts of this case the doctrine applicable to cases of head-on collision cannot be applied. This is a case where the entire accident was occasioned by negligence on the part of the driver of the truck and the driver of the jeep had nothing to contribute. Mr. Patnaik had relied upon a decision in Koh Hung Keng v. Low Pee Lorry Transport Co. 1967 A.C.J. 303 where the two drivers had been branded as "road-hogs". In the facts of this case we are not prepared to brand the driver of the jeep as a "road hog" while there may be a room to hold that the driver of the truck would be described as such. The findings, therefore, on both the issues 2 and 3 as reached by the Tribunal have to be reversed. We come to conclusion that the accident took place as a result of the negligence on the part of the driver of the truck and there was no contributory negligence on the part of the driver of the jeep.

14. The next question for consideration is about compensation. As has been very appropriately indicated in The Oriental Fire and General Insurance Co. Ltd. v. Kamal Kamini 1972 A.C.J. 92 "The Tribunal is to follow a summary Procedure in determining compensation, Respite a self-contained Code of procedure for adjudication of claims being provided, the sections (110A to 110F) do not deal with the substantive law regarding determination of liability. They only furnish a new mode of enforcing liability. For determination of liability one has still to look to the substantive law in the Law of Torts and the Fatal Accidents Act, 1855 or at any rate to the principles thereof.

In Gobald Motor Service v. Veluswami. : A.I.R. 1962 S.C. 1 their Lordships quoted with approval the statement of the law on the point by Lord Russell of Killowen and Lord Wtight in Davies v. Powell Duffrin Associated Collieries Ltd. (1942) A.C. 601 Lord Russell stated, "The general principle, which has always prevailed in regards to the assessment of damages under the Fatal Accidents Acts is well settled, namely, that any benefit accruing to a dependent by reason of the relevant death must be taken into account. Under those acts the balances of loss and gain to a dependant by the death must be ascertained, the position of each dependent being considered separately."

Lord Wright elaborated the theme further thus:

The damages are to be based on the reasonable exception of pecuniary benefit or benefit reducible to money value. In assessing the damages all circumstances which may be legitimately pleaded in 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 benefit, and, on the other any pecuniary advantage which from whatever source comes to him by reason of the death.

The Supreme Court also quoted the dictum laid down by Viscount Simon in Nance v. British Columbia Electric Railway Co. Ltd. (1951) A.C. 601 with approval. The learned Lord stated, "The claim for damages in the present case falls under two separate heads. First if the deceased had not been killed, but had eked out the full span of life to which in the absence of the accident he could reasonably have looked forward, what sums during that period would he probably have applied out of his income to the maintenance of his wife and family"

The next portion of Viscount Simon had been reproduced by Svbha Rao, J., and his Lordship then was thus:

According to him, at first the deceased mans expectation of life has to be estimated. having regard to his age, bodily health and the possibility of premature determination of his life by later accidents; secondly, the amount required for the future provision of his wife shall be estimated having regard to the amount he used to spend on her during his life time, and other circumstances; thirdly, the estimated annual sum is multiplied by the number of years of the mans estimated span of life, and the said amount must be discounted so as to arrive at the equivalent in the form of a lump sum payable on his death; fourthly, further deductions must be made for the benefit securing to the widow from the acceleration of her interest in his estate; and fifthly, further amounts have to be deducted for the possibility of the wife dying earlier if the husband had lived the full span of life, and it should also be taken into account that there is the possibility of die widow remarrying much to the improvement of her financial position. It would be seen from the said mode of estimation that many imponderables enter into the calculations. Therefore, actual extent of the pecuniary loss to the Respondents may depend 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, that is, the balance of loss and gain to a dependant by the death must be ascertained.

In a later case C.K.S. Iyer v. T.K. Nab 1970A.CJ. 110 Their Lordships have quoted with approval the statement of the law in Winfield on Torts, 7th Edition, at pages 135 and 136 which reads as follows:

The starting point is the amount of wages which the deceased was earning the ascertainment of which to some extent may depend on the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basic figure which will generally be turned into a lump sum by taking a number of years purchase. That sum, however has to be taxed down by having regard to the uncertainties, for instance that the widow might have again married and thus ceased to be dependent, and other like matters of speculation and doubt. The number of years purchase is left field, from twelve to fifteen has been quite a common multiple in the case of a healthy man, and the number should be materially reduced. by reason of the hazardous nature of the occupation of the deceased man. These principles are, however, only appropriate where the deceased was the bread-winner of the family. Obviously they cannot be applied for example, where the claim is in respect of a mere expectation the deceaseds contribution to the family was in kind and not in cash.

Their Lordships clearly indicated the difficulty in laying down any uniform rule in the matter of ascertainment of compensation and said, "Since the elements which go to make up the value of the life of the deceased to the designated beneficiaries are necessarily personal to each case, in the very nature of things, there can be no exact or uniform rule for measuring the value of human life. In assessing damages, the Court must exclude all considerations of matter which rest in speculation or fancy though conjecture to some extent is inevitable.

Keeping the law as indicated above, we shall now proceed to ascertain the quantum of compensation. The claimant laid claim for compensation of Rs. 2,34,600/-.

15. Ext. 6, the matriculation certificate, shows that the deceased was born on 1. 8. 36. By the date of his death arising out of the accident he was thus aged about 32 years. The claimant (P. W. 6) has given evidence that the grand-father of the deceased who was still alive was aged 100 years, and the deceaseds father who was also alive aged 78 years. The mother of the deceased who was alive was aged 68 years. There is no cross-examination on the point to the witness. We can, therefore, assume that the members in the family of the deceased ordinarily lived a long span of life. There is evidence that the deceased had good physique. Taking into consideration, however, the new generation to which the deceased admittedly belonged, we are prepared to accept that the deceased but for the accident would normally have lived till the 65th year of life.

As already indicated, the deceased was in Government service as an Assistant Engineer. P. W. 3 an employee in the Orissa Construction Corporation, has led evidence to the effect that the deceased was a Deputy Project Engineer in the Corporation on deputation. There is no dispute that he belonged to the cadre of Assistant Engineer and was in the service of the State Government. There is no material on record to show that the deceased was in temporary service. We shall, therefore, be justified to assume on the evidence on record that the deceased would have continued in service until the age of superannuation, that is, until he became 55. Thus he would have remained in service for 23 years more whereafter in view of our earlier finding that he would have lived until the age of 65 he would have earned pension for 10 more years until his estimated date of death.

P.W. 3 has led evidence that the deceased was employed in the scale of pay of Rs. 300-25-400-E.B.-30-520-E.B.36-64O-40-780. According to him the deceased would have reached the maximum pay in the scale by 1975. Keeping in view the prospects of service in the relevant department of Govt, the deceased ordinarily should have been expected to retire as a Superintending Engineer, the pay scale whereof is Rs. 1050-50-1500. Between the post the deceased held at the time of death and that of Superintending Engineer intervenes the post of Executive Engineer the pay scale whereof is Rs. 600-30-720-E.B.-40-1000. It is difficult to say how long he would have remained in which category of service. Therefore, we are prepared to attach a flat rate of Rs. 100/- in the minimum as the monthly earning from service for the deceased. In adopting that figure we have taken into consideration the existing pay of the deceased at the time of death. By 1975 he would have gone up to Rs. 780/-and only with his promotion as Executive Engineer he would have gone upto Rs. 1000/- and thereafter for the remaining years of service as Superintending Engineer he would have drawn salary of more than Rs. 1000/-. Out of this salary the deceased was liable to income-tax deductible at the source. He would have ordinarily also suffered deduction for house rent as and when he occupied Govt, quarter, P. W. 6 has stated that the deceased was insured and was paying premium for the life insurance policy. That also has to be taken into account as a deduction. Taking these aspects into consideration during the period of service the net income in his hand would have come to Rs. 800/- on the average per month.

After superannuation until death during the estimated period of 10 years the deceased would have been entitled to compensation which we estimate modestly at Rs. 300/- per month.

16. How much out of his monthly income was the deceased investing in his family is the next question for consideration. His widow P.W. 6 has stated that the deceased was paying Rs. 650/- for family expenses. Rs. 350/- out of it was being spent for the maintenance of the family and she was taking Rs. 150/- for her personal expenses and a sum of Rs. 150/- was being saved for the marriage of the two daughters. There is no cross-examination to the witness on this aspect of the evidence. Yet we find it difficult to accept the evidence of P. W. 6 in the absence of any corroboration particularly because it would be to her interest to show a larger investment by the deceased on the family so as to have enhanced compensation.

As the evidence shows the family of the deceased consisted of his wife (P. W. 6), two daughters and a son. The eldest child is the son and P.W. 6 while giving evidence February, 1971 has given his age as 6. By the time of death of Subash the child must have been aged about a little more than 3 years. The other two daughters must have been about 2 years and 6 months old respectively. The children had thus no school expenses. They were so young that apart from their maintenance and some expenses on clothing no other expenditure would have been warranted. The claimant is a young lady aged about 20 years by the date of death of Subash. Her expenses in view of her own unchallenged statement that the family had a good standard of living may have been considerable.

Subash as an Assistant Engineer must have also been living a somewhat comfortable life. Keeping the evidence of P.W. 6 in view the high standard of living in the family, the attainment of Subash and other circumstances, we think it appropriate to hold that he must have been investing about half of his income on the family. Subashs income would have gradually become more. Even if we assume that there would have been no addition to the family, the needs of the children would have grown with their coming of age. We shall, therefore, assume that throughout the period until the daughters married away and the son got separately established the deceased would have kept on investing 50 per cent of his income on the members of the family on whose behalf claim has now been laid.

The son who was aged about 3 at the time of death of Subash can be expected to get settled with an independent income by his age of 25. The daughters would have also married away at the latest when they became about 20 years old. The dependence, therefore, of these children on the deceased would have continued for almost 20 years from the date of death leaving a three-year gap from the service period of the deceased. In view of the fact that this is all more or less a guess work we are prepared to hold that such dependence would have been for whole period of service both for the wife as also the children.

17. As we have already found the average earning from salary of the deceased throughout the period of service would have been Rs. 800/- per month net, (that is, after deducting income-tax, house rent, life insurance premium, etc) and out of it he would have contributed a moiety for the maintenance of the family of which with the death of the deceased the claimants have been deprived. We shall, therefore, adopt an annual contribution of Rs. 4,800/-by the deceased for the claimants. When it is multiplied by 23 years the amount works out at Rs. 1,10,400/-.

During the ten-year period after superannuation we are prepared to accept the same basis of contribution, that is a moiety. Calculating the pension at Rs. 300/- the contribution for the wife would then have been at the rate of Rs. 150/- per month which would work out at Rs. 1800/- per year and Rs. 18,000/- for the total period of 10 years. Thus the deceaseds contribution towards the members of the family during the rest of his life which he was expected to live but for the accident would have been Rs. 1,28,400/-.

18. Now we have to balance the loss and gain to find out what would be the just compensation within the meaning of Section 110-B of the Act. The deceased had an insurance which, with his death arising out of the accident, must have become payable. There is, however, no evidence as to the extent of the policy of insurance. Ordinarily the lump sum amount is discounted by l/6th committing various eventualities Rajinder v. Union of India, and Oriental Fire and General Insurance Co. Ltd. v. Kamal Kamini 1972 A.C.J. 92. Considering the immediate pay ability of the insurance policy and other service benefits which must have accrued to the benefits of the deceased under the rules we are prepared to make a further deduction of l/8th of the compensation estimated as above. There shall thus be a total deduction of l/6th. plus l/8th., that is, 7/24th. When the amount determined above is scaled down by 7/24th it comes to Rs. 90,950/-. Keeping in view the margin of arrear we are still prepared to delete the amount of Rs. 950/- and fix the compensation at a net amount of Rs. 90,000/-.

19. It has been argued with vehemence for the Appellant that the liability for the entire amount is also of the insurer. Reliance is placed for such contention on a Bench decision of the Madras High Court inK. Gopalakari Shnan v. Sankara Narayanna 1969 A.C.J. 34 Section 95 (2) of the Act provides, "Subject to the proviso to Sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident upto the following limits, namely:

(a). Where the vehicle is a goods vehicle, a limit of twenty thousand rupees in all, including the liabilities, if any, arising under the Workmens Compensation Act, 1923, in respect of the death of, or bodily injury to employees (other than the driver), not exceeding six in number, being carried in the vehicle.

With effect from 1969 the extent of limit of Rs. 20,000/- has been enhanced to Rs, 50,000/-. In view of the fact that at the time of accident the limit was Rs. 20,000/-, the subsequent amendment would not apply to the case and the liability of the insurer would continue to be Rs. 20,000/- only as was provided in the statute at the time of accident Mr. Misra for the Appellant was not justified in relying on the decision of the Madras High Court in support of his contention that liability was unlimited in view of the fact that a Full Bench of the Madras High Court in Jayalakhmi v. R.G. Insurance Co. 1970 A.C.J. 84 had already overruled the statement of the law by the Division Bench. The full Bench stated, "It follows that Sub-section (2) of Section 95 has not been correctly interpreted by the Division Bench in A.I.R. 1961 Mad 436. We are in agreement with the learned Judges who have referred the matter to the Full Bench in their interpretation of the Sub-section. It is our opinion that where an insurance company insures the owner of a goods, vehicle under Section 95 of the Motor Vehicles Act, 1939, against the liability which the owner may incur in respect of the death of a third party caused by the use of the vehicle in a public place, the policy being simply one conforming to the requirements of the Act, the liability of the Insurance Company is limited to Rs. 20,000 under Section 95 (2) of the Act.

Though there has been no discussion, this Court, in Oriental Fire and General Insurance Co v. Kamal Kamini 1972 A.C.J. 92 in paragraph 11 of its judgment has also so stated the legal position.

In this case the policy is only a statutory one and as condition No. 1 in the policy (Ext. A) shows there is no additional provision for indemnity. We shall, therefore, held that out of the total compensation of Rs. 90,000/- payable for the accident the Respondent No. 2 insurer shall have the liability to the tune of Rs. 20,000/-and the balance is payable by the owner of the vehicle in accordance with law.

20. It is not for us to apportion the compensation between the claimant and her children. The children are too young and are being looked after by the mother. They have got to be educated and in due course of time the daughters have to be given in marriage and the son has to be provided for. We expect the claimant-mother to look after these aspects out of natural pity and affection.

21. We accordingly allow the appeal, set aside the award of the Tribunal and in lieu thereof direct that the Appellant shall be paid a total compensation of Rs. 90,000/-to be apportioned between the insurer and the owner in the manner indicated above. The Appellant shall have her costs both here and in the Tribunal below, we assess hearing fee at Rs. 250/-

B.K. Ray, J.

22. I agree.