Krishna Rao, J.This appeal is filed by the Hindustan Ideal Insurance Company, Ltd. u/s 110-D of the Motor Vehicles Act (IV of 1939) against the order of the Claims Tribunal (Chief Judge, City Civil Court, Hyderabad at Secundrabad) awarding a sum of Rs. 17,280 as compensation.

2. The first Respondent herein filed application O.P. No. 94 of 1963 before the Claims Tribunal, Secundrabad u/s 110-A of the Motor Vehicles Act claiming Rs. 20,000 as compensation on account of the death of his son Ramulu who was run over on 9th September, 1963 by a lorry, A.P.J. 979 which was owned and driven by Respondents 2 and 3 herein, respectively. The insurer, who was the first Respondent, filed a counter statement denying all knowledge of the accident and also contended that the claim for Rs. 20,000 was untenable in law and excessive. The second Respondent-owner remained ex parte throughout the proceedings but merely gave evidence stating that the lorry belonged to him and that he had insured the lorry for Act liability with the Appellant-Company. The application was contested mainly by the insurer. On a consideration of the evidence in the case, the Tribunal gave two findings, firstly, that the death of the claimants son was caused as a result of his being knocked by the said lorry; secondly, that the claimant is entitled to a sum of Rs. 17,280 as damages or compensation. Against the said order, the insurance Company filed the present appeal.

3. The only point argued before me on behalf of the Appellant by the Learned Counsel Mr. Ramagopal is that the compensation awarded by the Tribunal is excessive. On the other hand, the Learned Counsel for the claimant (Respondent No. 1 herein) Mr. Jayachandra Reddy, while supporting the finding on the quantum of damages, however, contended that it was not open to the Insurance Company to question the quantum of damages in view of the provisions of section 96 (2) of the Motor Vehicles Act, according to which the insurer is entitled to raise only certain specified grounds in defence to an action and that the said provisions do not entitle the Appellant to question the quantum of compensation.

4. Hence there are two questions which arise for my consideration, firstly, whether the Appellant is entitled to dispute the quantum of compensation ; secondly, whether the compensation awarded by the Tribunal is excessive and if so, what is the proper amount

5. Taking up the first point for consideration, it is necessary to refer to the relevant provisions of the Act and the rulings which have interpreted the said provisions, in order to appreciate the objection.

96. (1) If, after a certificate of insurance has been issued under Sub-section (4) of section 95 in favour of the person by whom a policy has been effected, judgment in respect of any such liability as is required to be covered by a policy under Clause (b) of Sub-section (1) of section 95 (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment-debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.

(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment unless before or after the commencement of the proceedings in which the judgment is given the insurer had notice through the Court of the bringing of the proceedings, or in respect of any judgment so long as execution is stayed thereon pending an appeal ; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:

(a) that the policy was cancelled by mutual consent or by virtue of any provision contained therein before the accident giving rise to the liability, and that either the certificate of insurance was surrendered to the insurer or that the person to whom the certificate was issued has made an affidavit stating that the certificate has been lost or destroyed, or that either before or not later than fourteen days after the happening of the accident the insurer has commenced proceedings for cancellation of the certificate after compliance with the provisions of section 105 ; or

(b) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:

(i) a condition excluding the use of the vehicle--

(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or

(b) for organised racing and speed testing or,

(c) for a purpose not allowed by the permit under which the vehicle is used where the vehicle is a transport vehicle, or

(d) without side-car being attached, where the vehicle is a motor-cycle ; or

(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification ; or

(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion ; or

(e) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.

(3) Where a certificate of insurance has been issued under Sub-section (4) of section 95 to the person by whom a policy has been effected, so much of the policy as purports to restrict the insurance of the persons insured thereby by reference to any conditions other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (6) of Sub-section (1) of section 95, be of no effect:

Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this Sub-section shall be recoverable by the insurer from that person.

(4) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured by a policy exceeds the amount for which the insurer would apart from the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.

(5) In this section the expressions material fact and material particular mean, respectively, a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether be will take the risk and, if so, at what premium and on what conditions and the expressions liability covered by the terms of the policy means a liability which is covered by the policy or which would be so covered but for the fact that the insurer is entitled to avoid or cancel or has avoided or cancelled the policy.

(6) No insurer to whom the notice referred to in Sub-section (2) or sub-section (2-A) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment as is referred to in Sub-section (1) or Sub-section (2-A) otherwise than in the manner provided for in Sub-section (2)....

The effect of the above provisions was considered by the Supreme Court in British India General Insurance Co. Ltd. Vs. Captain Itbar Singh and Others, , which was decided on appeal from judgment of the High Court of Punjab in Itbar Singh Vs. P.S. Gill and Others, . The facts out of which the said case has arisen are fully set out in the judgment of the High Court of Punjab. A suit was filed for recovery of compensation against the owners of the vehicles under the provisions of the Motor Vehicles Act for injuries sustained as a result of an accident and in the said suit, a notice was issued to the insurer who entered appearance, and filed a written statement raising three pleas in defence, regarding (i) the factum of the accident; (ii) contributory negligence and (iii) the quantum of damages. Thereupon the Plaintiff filed an application objecting that the written statement filed by the insurer raising the aforesaid pleas should not be considered. The High Court having allowed the Plaintiffs objection, the matter was taken up to the Supreme Court which held, on a consideration of the provisions of section 96 (2) and (6) quoted above, as follows:

To start with it is necessary to remember that apart from the statute an insurer has no right to be made a party to the action by the injured person against the insured causing the injury Sub-section (2) of section 96 however gives him the right to be made a party to the suit and to defend it. The right therefore is created by statute and its content necessarily depends on the provisions of the statute....

Now the language of Sub-section (2) seems to us to be perfectly plain and to admit of no doubt or confusion. It is that an insurer to whom the requisite notice of the action has been given "shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely," after which comes an enumeration of the grounds. It would follow that an insurer is entitled to defend on any of the grounds enumerated and no other Sub-section (6) also indicates clearly how Sub-section (2) should be read. It says that no insurer to whom the notice of the action has been given shall be entitled to avoid his liability under Sub-section (1) "otherwise than in the manner provided for in Sub-section (2).

Now the only manner of avoiding liability provided for in Sub-section (2) is by successfully raising any of the defences therein mentioned. It comes then to this that the insurer cannot avoid his liability except by establishing such defence. Therefore Sub-section ( ) clearly contemplates that he cannot take any defence not mentioned in Sub-section (2)...it was however argued before the Supreme Court that once the insured is made a party for the purpose of defending an action, it would be open to the insurer to raise any defence which would relieve him of the liability to pay compensation and that otherwise it would cause great hardship if the insurer were not allowed to do so. This contention was answered by the Supreme Court as follows:

We are furthermore not convinced that the statute causes any hardship. First, the insurer has the right, provided he has reserved it by the policy, to defend the action in the name of the assured and if he does so, all defences open to the assured can then be urged by him and there is no other defence that he claims to be entitled to urge. He can thus avoid all hardship if any, by providing for a right to defend the action in the name of the assured and this he has full liberty to do. Secondly, if he has been made to pay something -which on the contract of the policy he -was not bound to pay, he can under the proviso to Sub-section (3) and under Sub-section (4) recover it from the assured. It was said that the assured might be a man of straw and the insurer might not be able to recover anything from him. But the answer to that is that it is the insurers bad luck. In such circumstances the insured person also would not have been able to recover the damages suffered by him from the assured, the person causing the injuries. The loss had to fall on some one and the statute has thought fit that it shall be borne by the insurer. That also seems to us to be equitable for the loss falls on the insurer in the course of his carrying on his business, a business out of which he makes profit and he could so arrange his business that in the net result he would never suffer a loss.

It is therefore clear from the pronouncement of the Supreme Court that it is not open to the Appellant (insurer) to raise a plea relating to the quantum of the compensation. It is common ground that there was no clause in the policy enabling the insurer to defend any such action in the name of the assured. Hence, as pointed out by the Supreme Court, it was the bad luck of the insurer that he should bear the present loss. The Learned Counsel for the Appellant attempted to distinguish the above ruling of the Supreme Court on the ground that it was a case which arises out of a regular suit, while the present proceedings are instituted under the provisions of sections 110-A, 110-B, 110-C and 110-D which were introduced by amending Act C of 1956 (Central) providing for the adjudication of such claims by Claims Tribunal, on an application filed by the claimant. Even after the said provisions were introduced by way of amendment, the provisions of sections 96 (1) and 96(2) of the Act were retained intact. Hence, it makes no difference whether the proceedings for the recovery of compensation were instituted by way of a suit before the amendment or by way of an application before the Tribunal after the amendment. It also makes no difference whether the insurer enters appearance and files his written statement after notice is issued to him under the provisions of section 96 or whether he was impleaded as a party at the very inception. The mere fact that the insurer is straightaway impleaded as a party does not put him in a better position than if he enters appearance after notice is issued at a subsequent stage. It is settled law that a claimant cannot get a decree by instituting proceedings only against the insurer there being no privity of contract between them. The liability is primarily that of the owner of the lorry and insurer is liable as per the provisions of section 96 as if he were a judgment-debtor. In view of this liability, the statute provided that the insurer may be given opportunity to establish any of the grounds mentioned in section 96 (2) which go to avoid the policy itself. If the insurer succeeds in avoiding the policy, he can thereby incidentally avoid all liability. But all the same, section 96 (2) states that the object of giving the notice to the insurer is to entitle him to be made a party and to defend the action on the specified grounds. Though the expression defending the action is wide enough ordinarily to include any defence which would give belief to the Defendant, by reducing the liability in whole or in part, the Supreme Court construed the words in a limited way, namely, that the action can be defended only on the grounds specified thereunder, but not otherwise. It is next contended by the Learned Counsel for the Appellant that the defence mentioned in Sub-section (2) relates only to a case where the insurer seeks to avoid his liability itself, that is to say, that he was not at all liable to pay the compensation, that the insurer can always say that though he is liable to pay the compensation, he can be made liable to pay a sum lesser than the amount claimed. I do not see any force in the contention because by being permitted to raise such defence, the insurer is trying to avoid his liability in part though not in whole. On a reading of the provisions of section 96 (2), as interpreted by the Supreme Court, in the aforesaid ruling, I do not think there is any room for such a contention. Such an argument cannot be accepted for the simple reason that even in the aforesaid case which was decided by the Supreme Court, the insurer not only raised the two grounds which would enable him to avoid the liability as a whole namely, the factum of the accident and the contributory negligence of the Plaintiff, but also disputed the quantum of compensation. In view of the decision of the Supreme Court that no such defence can be raised by the insurer, I do not think that the insurer can be permitted to dispute the quantum of compensation.

6. It is finally contended by the Learned Counsel for the insurer that this objection was not taken before the Tribunal and that when once there is a decree against the insurer, he is entitled to attack the decree in this appeal as a person aggrieved by the decree. This argument is equally unfounded. If the insurer is precluded from raising such a defence before the Tribunal it follows as a matter of logic, that he cannot be in better position at the stage of appeal and he will be equally precluded from raising such a defence. Though this point was not raised before the Tribunal, I have considered the same as it is a pure question of law and goes to the very root of the matter. Even after the introduction of sections 110 to 110-E it was held by the High Court of Madras in General Assurance Society Ltd., Madras Vs. N.A. Mohammed Hussain and Another, , that it is not open to the insurer to raise defences other than those specified in section 96 (2). Following the above rulings, I hold that it is not open to the Appellant to question the quantum of compensator

7. The next question for consideration is as regards the quantum of compensation. In view of my finding on the first point, this question does not really arise. But I propose to give a finding in the alternative, as my decision is subject to appeal. The deceased was 19 years old at the time of his death and was drawing a salary of Rs. 50 per mensem in the scale of pay of Rs. 50-1-55-70. It was stated that he was sending a sum of Rs. 40 per month to the claimant towards his maintenance and that he would have been in service for a period of 36 years, but for his death. Hence the quantum of damages was estimated by the Tribunal as Rs. 40x12x36, that is Rs. 17,280 In arriving at this figure, the Tribunal also took into consideration the fact that there were two unmarried sisters of the deceased depending on his earnings. The Appellants Learned Counsel contends that the basis on which this amount is fixed is opposed to law and that the Tribunal failed to take into consideration the correct legal basis. The Tribunal relied, upon certain genera1. principles laid down by the Supreme Court in Gobald Motor Service Ltd. and Another Vs. R.M.K. Veluswami and Others, . while interpreting the provisions of the Fatal Accidents Act. But I do not think that the principles laid down in the said ruling are of any assistance so far as the present case is concerned. The net result of the decisions of the English Courts has been summarised in Mayne & Mcgragor on Damages, Twelfth Edition (1961) paragraph 813 which runs as follows:

The Courts have evolved a particular method for calculating the value of dependency, or the amount of pecuniary benefit that the dependant could reasonably expect to have received. The basis is the amount of pecuniary benefit that the deceased would have conferred upon the dependant in the future. This may be calculated by taking the annual figure of the dependency, whether stemming from money or goods provided or services rendered, and multiplying it by the number of years that the dependency might reasonably the expected to last. This latter figure is generally referred to as the multiplier. The resulting amount must then be scaled down by reason of two considerations, first that a lump sum is being given instead of the various sums over the years, and second that contingencies might have arisen to cut off the benefit prematurely. The method adopted by the Courts to scale down the starting figure is to take the figure intact of present annual dependency and reduce only the multiplier. And if the present annual dependency, i.e., the actual pecuniary benefit being received at the death, was liable to increase or decrease in the future, as where a husband or father was likely in course of time to attain a higher salary or fall to a lower one, then the practice of the Courts is still to allow for this, not by changing the figure of present annual dependency, but by altering, up or down, the multiplier.

In this connection, reference may be made to the principles laid down by Lord Wright in General Assurance Society Ltd., Madras Vs. N.A. Mohammed Hussain and Another, , which are 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 certain number of years purchase, that sum, however, has to be taxed down by having due regard to uncertainties, for instance, that the widow might have again married and thus ceased to be dependent, and other like matters of speculation and doubt.

8. In the case of death of unmarried children, it was observed in the same book on Damages, in paragraph 828 as follows:

One important factor in the case of unmarried children is a possibility that they will marry and that consequently their contributions to their present will be reduced or cease altogether, in the case of a son by reason of his new obligation to support his wife ; in the case of a daughter by reason of her ceasing work and starting gratuitous services for her husband.

Following these principles, a Division Bench of the Madras High Court in The Indian Mutual General Insurance Society Limited, Madras v. M. Kothandian Naidu and Ors. 1966 1 MX 113: 1966 A.C.J. 62 awarded a sum of Rs. 15.000 to a claimant aged 52 years, on the basis of a contribution of Rs. 125 per month for a period of ten years. In arriving at this figure, the learned Judges while observing that the claimant would have lived for 18 years however, reduced the multiplier of 18 years to 10 years in view of the contingencies which have to be taken into account.

9. Applying the above principles to the facts of the present case, what has got to be ascertained is the probable period of dependence, that is to say, the period during which the dependent namely, the claimant who is the father, would have had the benefit of the sons earnings. The claimant was 60 years old on the date of the death of his son and assuming that he would have lived for a period of 90 years, we can take 30 years as the period of his dependency. But we have to take into account the contingency that the claimant may not have lived so long and hence it is necessary to reduce the said period which is referred to as the multiplier. Even taking the expected life of the deceased one cannot predicate that he would have lived till his 55th year, that is, the age of retirement and maintained his father. He might have met with death at any time before his 55th year. He may have been physically disabled and deprived of his earning capacity or he may have been removed from service for some reason or the other. Hence taking these various contingencies in the earning capacity of the deceased, one cannot presume that he would have contributed his earnings for a fixed period of 30 years. Moreover, the maximum salary he would have drawn was Rs. 70 and there is no guarantee that he would have contributed at the rate of Rs. 40 per month for all the 30 years. He would have married and certainly his income available for maintaining his father would have been considerably diminished. Of course, it is also possible that the deceased would have got his increments in salary and promotions in service. Though it is stated in the evidence of the claimant that there are two unmarried sisters who are being maintained by the deceased, it was not stated in the petition that they are also dependants of the deceased. Their ages have not been mentioned in the evidence. But it appears that they are about to be married. Hence there was the possibility of their getting married shortly after the death of the deceased and it would therefore be no longer necessary for the deceased to maintain them, even assuming that they can also be regarded as the legal representatives of the deceased. I therefore cannot agree with the basis adopted by the Tribunal, namely, capitalising a monthly contribution of Rs. 40 for 36 years. Taking the over-all picture and the circumstances of the case into consideration, I am inclined to think that the deceased would have contributed a sum of Rs. 30 on an average per month and I propose to fix the multiplier, that is the period of dependency, as 20 years. Hence the claimant would have been entitled to a sum of Rs. 30x12x20, that is for a sum of Rs. 7,200.

10. In the result, in view of my finding on the first question, I dismiss this appeal, but without costs.