SAMBBUPADA Vs. SOBHRANI SEN SHARMA ALIAS SEN GUPTA

JUDGEMENT

(1.) THIS appeal is at the instance of the owner and the insurer of the vehicle being a private bus No. WBS 2739 and it is directed against Order No. 31 dated May 31, 1973 of the Motor Accidents Claims Tribunal, Calcutta.

(2.) MR . Choudhury learned Advocate appearing on behalf of the Appellants has urged that in calculating the compensation the Tribunal should have excluded the amount of gratuity, house rent allowance and provident fund that was payable to the deceased. In support of this contention, he was placed reliance on a decision of the Supreme Court in Sheikhupura Transport Co. Ltd. v. Northern India Transporters' Insurance Co. Ltd. : 1971 A.C.J. 206. It has been observed by the Supreme Court that 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 beneath 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 dependent by the death must be ascertained. In the instant case, the Tribunal has not taken into consideration the gratuity, house rent allowance and provident fund money which would have been payable to the deceased if he had been alive and served the full term of service. The Tribunal has deducted the sum of rupees 2143/ - that was received by the widow of the deceased from the company. The Tribunal has not included within the amount of compensation, the full amount of bonus, gratuity, house rent and provident fund money which the deceased would have earned if he had been alive. In the circumstances in our view, the question of deduction under those heads does not at all arise. The decision of the Punjab High Court in Dr. Ram Saran and Anr. v. Shrimati Shakuntala Rai and Ors. : A.I.R. 1961 P&H. 400 does not support the contention of the learned Advocate for the Appellants In that case it has been held that the Plaintiffs are not in law, debarred from getting the pecuniary benefit of the provident fund that would be payable in April 1972, the date on which the deceased would have died naturally. It is apparent that by the said observation it has been laid down that the heirs of the deceased would be entitled to claim compensation for the amount that would have been payable to the deceased on account of the provident fund.

(3.) IT is next contended on behalf of the Appellants that after the attainment of the majority by the sons of the deceased they were not entitled to any compensation and the Tribunal should have computed the compensation accordingly. It is argued that after a legal representative of the deceased attains a particular age, say, the age of 24 years, he will be debarred from receiving the benefit of the compensation payable arising out of the death of the deceased, and that the compensation should be computed in that limited manner. We have not been able to appreciate this contention made on behalf of the Appellants. It may be that under certain circumstances the compensation should be calculated in the manner as suggested by the learned Advocate appearing on behalf of the Appellants, but in the instant case we do not see why the sons of the deceased who were minors on the date of the institution of the proceeding and attained majority during the pendency thereof would be debarred from receiving the compensation or why the compensation should be calculated in that way. This contention is, accordingly, rejected. The policy of insurance was issued on September 9, 1969 and it was valid upto September 8, 1970. The liability of the insurer under Section 95(2)(b)(ii)(2) of the Motor Vehicles Act was only Rs. 20,000/ -. During that period while the policy was in force, Section 95(2) was amended and liability of the insurer was raised from Rs. 20,000/ - to Rs. 75,000/ -. The amendment had come into force with effect from March 2, 1970. It is contended that as under the contract between the insurer and the owner of the vehicle the policy covered third party risks to the extent of Rs. 20,000/ -, the insurer has no liability in excess of the said amount, for the amendment was not made with retrospective effect. We are unable to accept this contention. The liability of the insurer under Section 95(2) is the statutory liability. Under the policy in question the limit of liability of the insurer in respect of any one accident is such amount as is necessary to meet the requirements of the Motor Vehicles Act, 1939. In our view, the liability under Section 95(2) is a statutory liability and as on the date of the accident, the amendment had already been made enhancing the liability of the insurer from Rs. 20,000/ - to Rs. 75,000/ -, the insurer will be liable to pay compensation to the extent of the maximum amount fixed by the statute as amended. This contention is therefore, rejected.