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PETITIONER: SHEIKHUPURA TRANSPORT CO.  LTD.

       Vs.

RESPONDENT: NORTHERN INDIA TRANSPORT INSURANCE CO.

DATE OF JUDGMENT16/03/1971

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. REDDY, P. JAGANMOHAN

CITATION:  1971 AIR 1624            1971 SCR   20  CITATOR INFO :  F          1977 SC1158  (11)  D          1981 SC2059  (20,26)  RF         1987 SC2158  (3,5,6)

ACT: Motor   Vehicles   Act,   1939  s.   11OB   and   s.   95(2) (b)--Principles  of  compensation  to be  granted  to  legal representatives  of  person  dying  in  accident  under   s. 11OB--Maximum  amount  of liability of insurer under  s.  95 (2)(b).

HEADNOTE: A  passenger  bus  belonging to the appellant  met  with  an accident,  as a result of which two persons B and N died  on the spot.  The legal representatives of the deceased persons applied for compensation before the tribunal appointed under the  Motor  Vehicles Act.  Their claim was  opposed  by  the appellant as well as by the insurance company.  The tribunal found  that  the accident was due to the negligence  of  the driver   and  therefore  the  claimants  were  entitled   to compensation.  The tribunal computed the compensation due to the  legal representatives of B at Rs. 18000.  Out  of  that sum  determined  the compensation due to the  widow  at  Rs. 8000; the compensation due to one of his daughters was fixed at  Rs.  4000  and to the other at Rs.  6000.   But  as  the daughters  had not made their claims during  the  prescribed time,  the Tribunal disallowed the compensation due to  them and  granted a decree in favour only of B’s widow.   In  the case  of  N  the tribunal computed  the  total  compensation payable  at  Rs.  18000 and granted that sum  to  his  legal representatives.  It directed that the entire sum payable by the appellant should be paid by the insurance company.   The insurance  company as well as the legal  representatives  of the  deceased persons appealed to the High Court.  The  High Court  enhanced  the  compensation  payable  to  the   legal representatives of both B and N from Rs. 18000 to Rs. 36000. It  condoned the delay in making the claim by the  daughters of  B  and  made  the  entire  sum  payable  to  his   legal representatives.    It  also  allowed  the  appeal  of   the insurance  company  and limited the amount  payable  by  the insurance  company  to Rs. 2000 in the case of each  of  the deceased  persons in accordance with s. 95(2) of  the  Motor Vehicles  Act.  By special leave appeals were filed in  this

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Court.    The  appellant  challenged  (i)  the   amount   of compensation  as  granted  by  the  High  Court,  (ii)   the condonation of delay in the case of B’s daughters and  (iii) the limiting of the amount payable by the insurance  company to Rs. 2000. HELD:     (i) Under s. 110B of the Motor Vehicles Act,  1939 the tribunal is required to fix such compensation as appears to it to be just.  The power given to the tribunal is  wide. The  pecuniary loss to the aggrieved party would  depend  on data  which  cannot  be  ascertained  accurately  but   must necessarily be an estimate or even partly a conjecture.  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  sources comes to them by reasons of the death, that is, the  balance of  loss  and  gain  to a dependent by  the  death  must  be ascertained. [25B-D] Gobald  Motor  Service Ltd. v. R. M. K.  Veluswami  &  Ors., [1962] 1 S.C.R. 929, relied on. The determination of the question of compensation depends on several   imponderable.    In  the   assessment   of   those imponderables  there is likely to be a margin of error.   If the assessment made by the High Court cannot 21 be considered to be unreasonable-and in the present case  it could  not be said to be unreasonable-it will not be  proper for  this  court  to interfere with  the  same.   Taking  an overall  assessment  of the facts and circumstances  of  the present  case  it could not be held  that  the  compensation awarded to the legal representatives of the deceased persons by the High Court was excessive. [24E] (ii) By the time B’s daughters were impleadedthe   time for  filing  applications  for  compensation  by  them   had elapsed.It was conceded that Tribunal had jurisdiction  to condone the delay in making the claim. The Tribunal had  not chosen to condone the delay.  But the High Court has in  its discretion  condoned  the  delay.   The wife  of  B  was  an illiterate  lady ; she was helpless and without  assistance. In  the circumstances this Court would not be  justified  in interfering with the discretion exercised by the High  Court in condoning the delay in question. [23C-D] (iii)Reading together the provisions in ss. 95(1)  (b), 95(2)  and 96 of the.  Motor Vehicles Act it is  clear  that the  statutory  liability of the insurer  to  indemnify  the insured  is as prescribed in s. 95(2).  Under  that  section the maximum liability on an insurer in the case of a vehicle carrying more than six passengers is Rs. 2000 per  passenger and  the  maximum  total liability is Rs.  20000.   In  the, present  case  the vehicle was one in which  more  than  six passengers were allowed to be carried.  The limit of  liabi- lity  of  the insurer prescribed under s. 95(2) (b)  can  be enhanced  by a contract to the contrary.  No clause  of  the policy issued to the appellant in the present cast  provided for  the payment of any amount higher than that fixed by  s. 95(2)  (b).   The  High Court was  therefore  right  in  its conclusion that the liability of the insurer in the  present case only extended up to Rs. 2000. [24G, 25D, 26B, D]

JUDGMENT: CIVIL APPELLATE JURISDICTION’ Civil Appeals Nos. 501 to  504 of 1967. Appeals  from  the judgments and orders dated  December  15,

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1965  of the Punjab High Court in First Appeals  from  Order Nos. 145 and 155 of 1960 and 6 and 7 of 1961. S.  K.  Mehta,  K.  L. Mehta and  K.  R.  Nagarala  for  the appellant(in all the appeals). Hardev Singh and H. L. Kapur, for respondent No. 1 (in C.   A. Nos. 501 and 502 of 1967) respondent No. 4 (in C. A. No.  503/67)  and  respondent No. 10 (in C. A.  No.  504  of 1967). S.K. Bagga, B. K. Bagga and S. Bagga, for respondent Nos. 2  (in C. A. No. 501 of 1967) respondent Nos. 1 to 8 (in  C. A.  No. 504 of 1967) respondent No. 2 (in C. A. No.  502  of 1967  and  respondents Nos.  1 and 2 (in C. A.  No.  503  of 1967). The Judgment of the Court was delivered by Hegde,  J. A passenger bus belonging to the appellant  while travelling  from Ludhiana to Rajkot met with an accident  at about  9  a.m. on February 11, 1959.  As a  result  of  this accident, two persons namely Bachan Singh and Narinder  Nath died  on the spot and some others received  minor  injuries. The  legal representatives of the deceased persons  applied, for compensation before 22 the tribunal appointed under the Motor Vehicles Act.   Their claim  was  opposed  by  the appellant as  well  as  by  the insurance   company.   Overruling  the  objections  of   the appellant  as  well as the insurance company,  the  tribunal found  that  the accident was due to the negligence  of  the driver   and  therefore  the  claimants  were  entitled   to compensation.  The tribunal computed the compensation due to the  legal  representatives of Bachan Singh at  Rs.  18,000. Out  of that sum it determined the compensation due  to  the widow  at Rs. 8,000; Rs. 4,000 to his daughter Harbans  Kaur and  Rs. 6,000 to his another daughter Balbir Kaur.  But  as the   daughters  had  not  made  their  claims  within   the prescribed time, it disallowed the compensation due to  them and  only granted a decree in favour of the widow of  Bachan Singh.  In the case of Narinder Nath, it computed the total compensation payable at Rs. 18,000/- and granted that sum to the  legal  representatives of Narinder Nath.   It  directed that the entire sum payable by the appellant should be  paid by the insurance company.  The insurance company as well  as the legal representatives of the deceased persons.  appealed to the High Court.  The High Court enhanced the compensation payable  to the legal representatives of both  Bachan  Singh and  Narinder  Nath from Rs. 18,000/- to Rs.  36,000/-.   It condoned’ the delay in making the claim by the daughters  of Bachan Singh and consequently made the entire sum payable to his  legal representatives.  It also allowed the  appeal  of the insurance company and limited the amount payable by  the insurance company to Rs. 2,000/- in the case of each one  of the deceased persons.  Aggrieved by the decision of the High Court, these appeals have been brought by special leave. Now  coming to the enhancement made by the High  Court  both Bachan  Singh and Narinder Nath were 42 to 43 years  old  at the  time  of their death; both the tribunal  and  the  High Court  have come to the conclusion that Bachan Singh had  an annual income of about Rs. 9,000/-.  Out of Rs. 9,000/-, Rs. 2,000/- was his income from immovable property; that  income continued to accrue to the benefit of his wife and children; therefore  only  the  income  other  than  the  income  from immovable  property which Bachan Singh was earning from  his contract  was taken into consideration.  The High Court  has come  to  the conclusion that Bachan Singh  must  have  been spending  at least Rs. 200/- on his family every month.   It must  be  remembered  that Bachan Singh  had  to  marry  two

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daughters.   Therefore whatever he might have been  able  to save after meeting the family expenses and his own, the same would  have been utilized for the marriage expenses  of  the daughters.   Both  the  tribunal and  the  High  Court  have computed  the  loss  to  the  family  of  Bachan  Singh   by capitalizing  the benefit that the family was  getting  from him during his life time.  The 23 High  Court did not accept the computation of  the  tribunal that  Bachan  Singh would have spent only Rs. 100/-  on  his family  during his life time.  We, think the High Court  was right  in  its conclusion.  Taking  into  consideration  the total income of Bachan Singh as well as the requirements  of the  family,  it is reasonable to hold that  he  would  have spent at least Rs. 200/- per month on his family.  We cannot also  overlook the fact that Bachan Singh in all  reasonable possibility  would have been able to earn more in the  years to come, if he had not died. It  is  true  that Bachan Singh’s daughters  were  not  made parties to the petition filed by the widow of Bachan  Singh, when  she  field  that  petition, but  later  on  they  were impleaded.   By the time they were impleaded, the  time  for filing  application  for compensation by the  daughters  had elapsed.   It is conceded that under law, the  tribunal  had jurisdiction to condone the delay in making the claim.   The tribunal had not chosen to condone the delay.  But the  High Court hag in its discretion condoned the delay.  It is  seen that  the wife of Bachan Singh was an illiterate lady.   She appears  to  have  been  quite helpless.   In  fact  in  her petition she specifically stated that she had no  assistance and  therefore  she  requested the court  to  give  her  the assistance of some lawyer.  We do not think that we will  be justified  in interfering with the discretion  exercised  by the High Court in condoning the delay in question. In the case of Narinder Nath, the evidence adduced on behalf of   the  claimants clearly establishes that he was  earning about Rs. 6,000/- per year as Commission Agent ;and that his income was going up from year to year.  But yet the tribunal thought that his income could be computed at Rs. 5,000/- per year.   There was no basis for such a  conclusion.   Further the tribunal held that Narinder Nath must have been spending about Rs. 100/- per month on his family.  This conclusion is a wholly fallacious one.  The evidence disclosed that he was spending  on his family about two to three hundred rupees  a month.  The High Court has arrived at the conclusion that he must  have  been spending Rs. 200/per month on  his  family. Here  again  it  may be noted-that he had  the  prospect  of earning more in the years to come and consequently he  would have  spent more on his family if he had lived  longer.   On the basis that he was spending about Rs. 200/- per month  on his   family,  the  High  Court  has  computed   the   total compensation   at   Rs.  36,000/-  It   has   computed   the compensation  on  the  basis of 15 years’  purchase  of  the benefits that were accruing to the family as in the case  of Bachan Singh. It  was  contended  on behalf of the  appellants’  that  the computation of compensation was excessive and the High Court erred  in not giving due deductions for  circumstances  like the  widow  remarrying,  the  possibility  of  the  deceased persons dying before they 24 reached the age of 58 years and the children of the deceased persons getting other source of income after they  completed their education. Under  S. 110B of the Motor Vehicles Act, 1939 the  tribunal

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is required to fix such compensation which appears to it  to be  just.  The power given to the tribunal in the matter  of fixing  compensation under that provision is wide.  Even  if we assume (we do not propose to decide that question in this case) that compensation under that provision has to be fixed on  the  same basis as is required to be  done  under  Fatal Accidents Act, 1855 (Act 13 of 1855), the pecuniary loss  to the  aggrieved party would depend upon data which cannot  be ascertained  accurately but must necessarily be an  estimate or even partly a conjecture.  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  pecu- niary benefit and on the other any pecuniary advantage which from  whatever,sources come to them by reason of the  death, that is, the balance of loss and gain to a dependent by  the death must be ascertained see Gobald Motor Service Ltd.  and anr. v. R.N.K. Veluswami and ors.(1) The determination of the question of compensation depends on several imponderables.  In the assessment of those imponder- ables,  there  is likely to be a margin of  error.   If  the assessment made by the High Court cannot be considered to be unreasonable and we do not think it to be  unreasonable-it will  not  be proper for this Court to  interfere  with  the same.   Taking  an  overall  assessment  of  the  facts  and circumstances of this case, we are unable to agree with  the contention of the appellant’s Counsel that the  compensation awarded to the legal representatives of the deceased persons is excessive.  Nor are we able to accept the contention that the High Court erred in condoning the delay in the matter of the claim made by the daughters of Bachan Singh. This  takes  us  to the question as to  the  extent  of  the liability   of  the  insurance  company.   The  measure   of liability  of  the  insurer  has  to  be  ascertained   with reference to S. 95(2) of the Motor Vehicles Act.  Section 94 of  that  Act requires that every passenger  bus  should  be insured against third party risk.  Section 95(1)  prescribes the  requirements of policies.  The provision  relevant  for our present purpose is S. 95(2).  That provision as it stood at the relevant time read thus :               "Subject to the proviso to sub-section (1),  a               policy of insurance shall cover any  liability               incurred in respect of any one accident up  to               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,               (1) [1962]1 S. C. R. 929.               25               arising under the Workmen’s 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.               (b)   where the vehicle is- a vehicle in which               passengers  are carried for hire or reward  or               by reason of or in pursuance of a contract  of               employment,  in respect of persons other  than               passengers carried for hire or reward, a limit               of  twenty thousand rupees; and in respect  of               passengers  a limit of twenty thousand  rupees               in all, and four thousand rupees in respect of               an  individual  passenger, if the  vehicle  is               registered   to  carry  not  more   than   six               passengers   excluding  the  driver   or   two               thousand  rupees in respect of  an  individual

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             passenger.  if  the vehicle is  registered  to               carry  more than six passengers excluding  the               driver;               (c)   where  the vehicle is a vehicle  of  any               other,  class,  the amount  of  the  liability               incurred." In  the present case we are dealing with a vehicle in  which more than six passengers were allowed to be carried.   Hence the maximum liability imposed under S. 95(2) on the  insurer is Rs. 2,000/per passenger though the total liability may go upto Rs. 20,000/-.  This is also the view taken by the  High Court.  The limit of insurer prescribed under S. 95(2)(b) of the  Motor Vehicles Act can be enhanced by any  contract  to the contrary.  Therefore we have to see whether the contract of  insurance  entered into between the  appellant  and  the insurance  company  provided  for the  payment  of  enhanced amount in case the owner of the bus involved in an  accident is required by the decree of a court to pay any higher  amo- unt  as  compensation.  The insurance policy issued  by  the insurer  is marked as Exh.  R. W. 3 /B.  Clause (1) of  that policy says :               "Subject to the limit of liability the Company               will  indemnify  the insured in the  event  of               accident  caused by or arising out of the  use               of the Motor Vehicle in a public place against               all  sums  including claimants costs  and  ex-               penses which the insured shall become  legally               liable to pay in respect of death of or bodily               injury to any person." The  opening  words of the clause "subject to the  limit  of liability   the  Company"  evidently  refer  to  the   limit prescribed under S. 95(2)(b) of the Motor Vehicles Act.   No clause  in the insurance policy specifically  providing  for the  payment of any amount higher than that fixed  under  S. 95(2)(b) was brought to our notice.  The clause dealing with avoidance of certain terms and the right of recovery reads               "Nothing  in  this policy or  any  endorsement               thereon  shall affect the right of any  person               indemnified by this               26               policy  or  any  other person  to  recover  an               amount under or by virtue of the provisions of               the Motor Vehicles Act 1939 Section 96". This clause makes it abundantly clear that the extent of the right of the person indemnified is as prescribed in S. 96 of the Motor Vehicles Act.  Under that provision the amount  to be recovered is that covered by cl. (b) of sub-s. (1) of  S. 95.  Clause (b)     of S. 95(1) says:               "In  order to comply with the requirements  of               this Chapter, a policy of insurance must be  a               policy which-               (b)insures the person or classes of  person               specified   in  the  policy  to   the   extent               specified  in  sub-section  (2)  against   any               liability which may be incurred by him or them               in respect of the death of or bodily injury to               any person caused by or arising out of the use               of the vehicle in a public place.............. Reading all these provisions together, it is clear- that the statutory liability of the insurer to indemnify the  insured is  as prescribed in.  S. 95(2).  Hence the High  Court  was right  in its, conclusion that the liability of the  insurer in the present, case only extends :up to Rs. 2,000 each,  in the case of Bachan Singh and Narinder Nath. For  the  reasons mentioned above these appeals.  fail  and.

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they are dismissed with costs. G.C.                                                 Appeals dismissed. 27