Oriental Fire and General Insurance Co. Ltd. and Others vs Deep Kaur and Others

Harbans Lal, J.—This appeal F.A.O. No. 32 of 1978 as well as the cross-objections No. 11-CII of 1978 under Order 41 Rule 33 of the CPC will be disposed of by this judgment.

The appeal is directed against the judgment of the Motor Accidents Claims Tribunal, Rupnagar, dated October 3, 1977, whereby allowing the petition of the Respondents-claimants for compensation u/s 110-A of the Motor Vehicles Act, 1939 (hereinafter called the ''Act'') and a total compensation of Rs. 1,28,000/- was granted.

One Attar Singh while driving car bearing No. PUL. 3514 from Chandigarh to Ludhiana on 15th December, 1970 met with a fatal accident. The claim petition was filed by Mrs. Deep Kaur his widow, Inderpal Singh and Amarjit Singh his two minor sons and Kumari Parvider Kaur his minor daughter. A truck bearing No. PUR 323 belonging to the Appellant No. 2 was parked on the metaled road near mile No. 13 between Morinda and Kharar. This vehicle had its back towards Kharar and the front portion towards Morinda side. There was no indication on the back-side of the truck by light or any other caution or warning to give a timely warning to the on-coming vehicles about the truck having been parked there. This truck was loaded but there was neither owner nor cleaner on or near the truck at the time of the accident. The car driven by the victim Attar Singh struck against the back portion of the said truck and as a result of the impact resulting in the instantaneous death of Attar Singh on the spot. Ram Lotan who was also in the front portion of the car alongwith Attar Singh was seriously injured.

The case of the claimants was that Attar Singh was a healthy young man aged about 40 years and was expected to live upto the age of 70 years. He was earning about Rs. 1,500/- per month at the time of his death out of his business by running a restaurant. It was also averred that Attar Singh was expected to earn about Rs. 5, 40,000/- during his remaining life. His widow was stated to be aged 34 years and was expected to live at least 40 years more. She claimed compensation amounting to Rs. 1, 44,000/- at the rate of Rs. 300/- per month. Inderpal Singh, his elder son, was aged 15 years and was studying in the 9th class in Kundan Vidya Mandir, Ludhiana. Rs. 22,000/- were claimed in lieu of his education expenses and Rs. 10,000/- for his marriage. The youngest son Amarjit Singh was aged 14 years and was studying in 10th class in the Public High School at Nabba. Rs. 48,000/- were claimed in lieu of his education expenses and Rs. 10,000/- on account of marriage. Kumari Parvinder Kaur was studying only in 2nd standard in Kundan Vidya Mandir, Ludhiana. An amount of Rs. 24,000/- was claimed in lieu of her maintenance, Rs. 25,000/- for her education and Rs. 20,000/- for her marriage.

The claim petition was contested by the owner of the truck as well as the Oriental Fire and General Insurance Company with which the truck in question was insured. According to their replies the accident was the result of the negligence of the deceased himself. It was averred that the truck in question had been parked not on any part of the metaled road but on a katcha portion away from the road. One tyre of the truck had got punctured, as a consequence the driver had left the truck there after taking all precautions. Plea was also taken that the deceased was driving the car at a very high speed and without taking proper precautions, struck his car against the back portion of the truck. As the accident was due to the negligence of the deceased neither of the Respondents was entitled to pay any compensation.

In view of the pleadings of the parties the following issues were framed:?

(1) Whether the accident took place due to the negligence of the driver Inderjit and if so to what effect ?

(2) To what amount of compensation the claimants are entitled and from whom ?

(3) Whether the accident took place due to the negligence of the deceased ?

(4) Whether the Respondents are entitled to special costs ? If yes to what amount ?

(5) Relief.

After assessment of the evidence adduced on both sides, the Tribunal came to the conclusion that the fatal accident had been caused due to the negligence of the truck driver inasmuch as the truck had been parked on a part of the metaled road without taking proper precautions and awarded the compensation as referred to above.

According to the evidence adduced on behalf of the claimants the unfortunate accident had been witnessed by two persons, namely, Ram Lotan (A.W.1) and Masta Singh (A.W. 2). A.W. 1 Ram Lotan was also travelling in the car at the fateful time and was sitting beside Attar Singh deceased from Chandigarh to Ludhiana. According to his deposition, at about 6.15 pm. on 15th of December, 1970 while the car was going on the road from Morinda towards Ludhiana at a distance of about one mile from Morinda, a truck was standing partly on the left side of the road and partly on the katcha portion. It was parked at that time. There was no light on the truck on its back portion. The car was being driven at a speed of 30 miles per hour. At the time of accident he was awake. As a result of shock of impact between the car and the truck his eyes were closed and he could not see. He further stated that at that time none was near the truck. The right leg of the witness had been fractured and he also suffered injury in the right eye. On account of these injuries he got his treatment in the Brown Hospital, Ludhiana. According to his further statement he had seen the truck for the first time from a distance of fifteen yards and Attar Singh deceased had applied brakes. The headlights of the car were on. In cross-examination it was made further clear that only one wheel of the truck was on the katcha portion of the road and the remaining part of the truck was on the road towards the left side. According to him no bricks had been placed on the road behind the truck so as to serve as an indication. The statement of Masta Singh (A.W. 2) who was going on his cycle from his village to Ropar was almost on similar lines. He also corroborated that two wheels of the truck had been parked on the pacca portion of the road which was also without light. According to him there was no person standing near the truck. The truck was full of bags. According to his further deposition the car was going at a slow speed. He saw the car dashing into the truck from a distance of about 10 karams. He also corroborated the fact that the driver of the car had applied the brakes and as a result there were skid marks of the wheels on the road. Inspite of his best efforts he could not pull out the deceased. Then he proceeded towards Police Station Morinda where he conveyed information regarding the accident. It was also disclosed in cross-examination that the metaled road was fairly wide at the place where the accident had taken place and three vehicles could pass at a time.

Niranjan Singh Photographer (A.W.3) who had taken the photographs showing the accident also stated that the truck in question was half on the katcha and half on the pacca road towards the left side. Gurdev Singh, A. S. I. Special Staff. Ludhiana (R.W.2) was Incharge of the Police Station Morinda at the time of accident and had investigated the case. He had recorded the statements of a number of persons including that of Masta Singh (A.W.2). He tried to help the Appellants by stating in the Court that the truck in question was parked on the katcha portion of the road on the left side and that a lantern had been hung on the back portion of the truck at the time when he reached the spot. However, he had to concede that in the rough site plan prepared by him on reaching the spot he had not mentioned the fact that the truck was on the katcha portion of the road or that there was lantern on the truck. Rather in his report u/s 174 of the Code of Criminal Procedure it had been specifically stated that the truck was parked on the left side of the road. It was also admitted by him that no drum or bricks were placed around the truck at the time of occurrence. Roznamcha entry Exhibit R. 1 was produced by H.C. Ashok Kumar (R.W. 1) which disclosed that the truck was parked on the left side of the road and there was no reference to any light on the truck or placing of any drum or bricks etc. around the truck. According to Inderjit Sharma (R.W.3), he was the driver of the truck in question. As one tyre of the truck had got burst at about 5.00 p.m. he had parked the vehicle on kacha portion on the left side of the road. He had left the cleaner with the vehicle after placing stones around the same. He returned at 7.00 p.m. on the next day when the fatal accident had taken place. According to his deposition the lights of the truck, both on the front and on the back-side were on. The cleaner who according to the witness had been placed incharge of the truck and as such was the best witness to prove the case of the Respondents, was however, not produced.

In view of the depositions of the two eye witnesses out of whom the presence of Ram Lotan (A.W. 1) at the spot cannot be doubted as he was sitting in the car at the time of the accident and himself sustained injuries on his leg and the entries in the Roznamcha as well as the statement of the Photographer who immediately after the occurrence took photographs of the truck and the car, the statement of Gurdev Singh A.S.I, to the extent that there was lantern hanging on the truck when he visited the spot and the statement of the driver of the truck Inderjit Sharma (R.W.3) that stones had been placed around the vehicle or the lights of the truck were on, cannot be given any credence. If the truck had its lights on, the lantern had been hanging on the truck and stones had also been placed around the vehicle, the same must have found mention in the entries in the Roznamcha. These articles must have also been disclosed in the photographs taken by the photographer. Besides, in order to prove the case of the Appellants-Respondents, the evidence of the cleaner who according to the driver had been left with the truck was very material but he was not put forth in the witness-box. There being no explanation for his non-production it is legitimate to raise the presumption that if he had appeared as a witness he would not have corroborated the version of the driver R.W. 3 as well as of the Assistant Sub Inspector. It is admitted that the truck in question belonged to Appellant No. 2 and Inderjit Sharma (R.W.3) was its driver at the time the truck was parked on the road and when the accident took place.

In view of the above discussion a clear and undoubted conclusion is warranted that Inderjit Sharma (R.W.3) driver of the truck had parked the truck in question on the left side of the road and only minor part of the truck was on the katcha portion of the road and the remaining part was on the metaled road though on its left side. There was no light on the truck at the time of the accident nor had any precautions been taken to give a warning to the passing vehicles or the passerby by placing drums, bricks, stones or any other material around the truck or placing any kind of light such as lantern etc. there. A duty is caste by Section 81 of the Act on the person who is in charge of the motor vehicle not to park his vehicle on the road in such a position or in such circumstances which may cause or be likely to cause a danger, obstruction or undue inconvenience to other users of the road. The said provisions is produced below:?

Leaving vehicle in dangerous position:?

No person in charge of a motor vehicle shall cause or allow the vehicle or any trailer to remain at rest on any road in such a position or in such a condition or in such circumstances as to cause or be likely to cause danger, obstruction or undue inconvenience to other users of the road.

According to the learned Counsel for the Appellants Section 81 of the Act does not warrant the construction that the driver or the owner of the vehicle which is parked on the road is required to keep any light on the vehicle or place any drums or bricks etc. around the same. It was further stressed that it has come in evidence that the road at the place of accident was so wide that even three vehicles could pass at a time and as such even if the truck in question had been parked on the left side of the road without light and without taking any precaution which could serve as a warning to the oncoming vehicles, no culpable negligence can be attributed to the owner or the driver of the truck. This contention cannot be acceded to. The clear purpose and intention of this provision is to avoid danger or obstruction to the vehicles or the passersby on the road by placing vehicles in any condition in any circumstances or any manner from which any kind of danger or obstruction could accrue or was likely to accrue. Chandigarh-Ludhiana road on which the accident took place undisputedly is such a road on which there is considerable traffic at all hours of the day and night. Parking of the vehicle on any part of the road, may be on the left side is bound to cause obstruction to the other traffic and during the night when there is no light on the vehicle and no other precaution is taken to avert the accident, danger of accident cannot be ruled out. Rather there is high probability of such accident by parking the vehicle on the road in the manner it has been proved on the record. In this case the driver of the truck had clearly committed violation of Section 81 of the Act. Even otherwise the driver of the truck and its owner cannot escape the liability or absolve himself of the wrong of ''negligence'' which is a breach of duty which is caused by the commission to do something which a reasonable man should do or doing something which a prudent and a reasonable man would not do. The question of ''negligence'' has to be decided taking overall view of all the attending and surrounding circumstances of a particular case. The test of negligence is the exercise of ordinary care and caution which is expected from a reasonable man. In the present case according to the statement of the driver one tyre of the truck had got punctured on the previous evening and he had gone to make the necessary arrangements by leaving the cleaner on the spot. He came only at 7-00 a m. on the next morning. As a driver he was expected to know that he was not expected to return during the night and the truck thus had to be kept standing. He was also expected as a reasonable man to know that it was a dark night and the parking of the truck on a part of the metaled road without light and without taking any precaution by placing the drums, Dricks or other requisite material around the truck at some distance so as to serve a warning to the on coming vehicles cannot be held but a clear act of negligence to take due care and caution and perform his duty in such circumstances. The learned Counsel for the Appellants in fact did not have much to say regarding the negligence of the Appellant No. 2. However, the case of the Appellants is that in spite of this negligence of the driver of the truck the fatal accident could not take place unless Attar Singh deceased was driving the car at a very rash speed and without taking the normal precaution of having a look at the objects at a distance on the road. According to the learned Counsel for the Appellants, if the head-lights of the car were on as is made out in the evidence of the claimants, the deceased was bound to have found out the parking of the truck from such a distance that he could easily avert the accident. Even a suggestion was thrown that most probably the car at that time was going at a very high speed and the deceased must have gone to sleep for a while at the steeling. In support of this reliance was placed on the statement of Ram Lotan (A.W.1) who was in the car. He admitted that Attar Singh deceased was in Yamna Nagar the the previous day alongwith him. He had driven the car from Yamna Nagar to Chandigarh at mid night and had reached at 5-00 a.m. Attar Singh had been working throughout the day at Yamna Nagar. After reaching Chandigarh both of them had taken tea and had left for Ludhiana. From these facts the learned Counsel for the Appellants wanted the inference to be drawn that Attar Singh deceased was quite tired by driving throughout the night and was very likely to doze off before the car dashed against the truck. However, a close perusal of the statement of Ram Lotan does not bear out this inference. According to the witness Attar Singh was awake even at a distance of 15 Karmas from the truck and the headlights of the car were on. No question was put to him in the cross-examination if Attar Singh deceased had gone to sleep and was feeling tired due to lack of sleep. It has also come on record that at the time of the accident at about 5-00 a.m. it was dark and the head lights of the car were on and further that the car was going at a speed of 30 miles per hour. In the face of these proved circumstances there is no scope for conjecture that the car was going at a high speed or perhaps the head lights were not on. In normal circumstances the driver of a vehicle is expected to run the vehicle thinking that the road is clear and no vehicle or any other object will be left on the metalled part of the road. Though there is no indication from any evidence on the record yet there is a probability that a little time before the accident some vehicle with lights on may be coming from the opposite direction and Attar Singh deceased facing the light in the opposite direction may not have discerned the parking of the truck from sufficient distance. Masta Singh (A.W.2) clearly stated that he saw applying of brakes of the car from a distance of about 10 karams. From this only conclusion which is possible and reasonable is that perhaps Attar Singh deceased could see the parking of the truck when the car may not be at a long distance from the truck and in such a situation even the application of brakes by him could not avert the accident. It was argued by the learned Counsel for the Appellants that in such circumstances Attar Singh deceased will also be held guilty of contributory negligence and the Appellants cannot be held liable to pay any compensation.

The doctrine of negligence and contributory negligence has been a subject matter of good deal of discussion and comment in England. In England the following four rules are deducible from the case law but they have now been superseded by the Law Capital Reform (Contributory Negligence) Act, 1945:?

(i) The Plaintiff fails if his negligence was subsequent to and severable from the Defendants.

(ii) The Plaintiff fails also if his negligence and the Defendants are simultaneous and synchronous or if the Defendant could not have avoided the result of the Plaintiff''s negligence.

(iii) The Plaintiff succeeds if the Defendant''s negligence was subsequent to and severable from the Plaintiff.

(iv) The Plaintiff succeeds also if his conduct though subsequent was not severable but was really due to the dangerous situation created by the Defendant''s negligence.

The Admiralty Courts in England followed the third and fourth rules but not the first two in the case of collisions of ships. In cases governed by the first two rules they adopted the principle of division of loss equally between the ships in fault. The Maritime Conventions Act, 1911 introduced a new principle of division, namely division in proportion to the respective fault of ships. The Act of 1945 referred to above has introduced the principle of the above Act to all cases of contributory negligence. This Act was the result of the recommendation of the Law Revision Committee that, the total denial of compensation to a Plaintiff under the present law of contributory negligence was unjust. Ramaswamy Iyer in his book The Law of Torts, Seventh Edition 1975, at page 453, has stated in para 27 as under:

The Plaintiff can recover inspite of his own negligence, if he establishes that the Defendant was guilty of a breach of duty to avoid the result of the Plaintiff''s negligence, in other words that there was independent and severable negligence of the Defendant.

This of course assumes that there is some initial negligence of the Defendant, otherwise there is no cause of action. Whether there was a breach of this duty is a question of fact in each case, depending on the nature of the danger created by the Defendant, his opportunity to avoid harm, and other circumstances.

It was held by a Division Bench of the Madhya Pradesh High Court in Vidya Devi and Anr. v. M.P. State Road Transport Corporation and Anr. 1974 A.C.J. 374, that if the new rules of English law replacing or modifying the common Law are more in consonance with justice, equity and good conscience, it would be open to the courts in India to reject the outmoded rules of common law and to apply the new rules. The same view was held by the High Court of Gujarat in Minor Rehana Rahimbhai Kasambhai v. The Transport Manager, Ahmedabad Municipal Transport Service, Ahmedabad and Ors. 1976 A.C.J. 156.

Thus though there is no Statute Law in India such as in England to meet the situation where conclusion is reached that the deceased or the injured had also contributed to the accident or the occurrence by his contributory negligence, the doctrine of contributory negligence and the determination of compensation after apportioning the liability of negligence to both the parties appears to be in corsonance with the well established principles of justice, equity and good conscience and has been applied by the Courts in India.

So far as the present case is concerned though there is no concrete evidence to show as to how far Attar Singh deceased was in a position to avert the fatal accident but as it is not beyond the pale of probability that if he had with all his vigilance discerned the parking of the truck from a sufficiently long distance perhaps the accident could be averted by bringing the car to stop before dashing into the truck or by turning the same to the right of the truck. Keeping this probability in view I think it will be in the interest of justice to both the parties that the liability for the accident may be apportioned between the owner and the driver of the truck on the one side and the deceased on the other in the ratio of 3/4th and 1 /4th and the amount of compensation shall also be determined keeping this in view.

In order to determine the amount of compensation the annual dependency of the claimants on the deceased and the suitable multiplier need be worked out in view of the principles laid down in the latest Full Bench judgment of this Court in Lachman Singh and Ors. v. Gurmit Kaur and Ors. 1979 A.C.J. 170.

According to the statement of Mrs. Deep Kaur (A.W. 4) widow of Attar Singh deceased, the latter was 4J years of age at the time of accident and was in perfect health. His eldest brother was aged 60 years and still alive. His mother aged 80 years was also alive. It was also deposed that Attar Singh deceased was a partner in the Green Restaurant, Ludhiana and his monthly income at the time of accident was about R.s. 1,500/-. He was a partner in equal share with his brother Gurbachan Singh Talwar in the said business which was corroborated from the partnership deed Exhibit A.1. According to the order of assessment of the Income Tax Officer ''B'' ward, Patiala, dated 29th of March, 1971, copy of which is on the record, the income of Attar Singh deceased for the year 1968-69 was assessed at Rs. 21,344/-, out of which his income from the hotel and restaurant business was Rs. 17,844/-. It was also averred that besides her, Attar Singh at the time of his death had left three children. Two sons Inderpal Singh and Amarjit Singh were aged 18 and 17 years respectively at the time of her statement recorded on 7.11.1973. Thus, their ages were 15 and 14 years at the time of the accident. The youngest child was daughter Parvinder Kaur who was aged 6 years. All the three children were getting education. The daughter was admitted in the Sacred Heart School in Dalhousie and the monthly expenditure of her education

and maintenance was Rs. 350/- per month. The education expenses of the two sons were Rs. 400/- per month. The rent of the house in which the family was living was Rs. 400/- per month. According to her further deposition the entire family was exclusively dependent on Attar Singh deceased. This version was not seriously challenged in cross-examination nor was any evidence produced in rebuttal to rebut the same. Rather Gurbachan Singh (R.W. 4) corroborated the fact that Attar Singh deceased was a partner with him in his business.

From the above evidence the only inference possible is that the monthly income of Attar Singh deceased was not less than Rs. 1,500/- per mensem. The family comprising of his wife and three minor children who were studying in the schools at various stages were dependent on him for their maintenance as well as education. The amounts spent on their education as disclosed by his widow, which was not disputed in cross-examination, also make it evident that the deceased was spending a considerable amount on their education. In these circumstances the deceased must be spending at least 2/3rd of the monthly income on the family and l/3rd on himself. Thus if he was spending Rs. 1,000/- monthly on the family the annual dependency of the family will be not less than Rs. 12,000/-.

The next question to be determined is as to what will be the appropriate multiplier for determining the amount of compensation by multiplying the annual dependency with the same For this purpose the relevant factors to be taken into consideration may be enumerated:

(i) The life of Attar Singh was terminated by the fatal accident at the age of 40. At that time he was quite hale and hearty. His mother aged 80 was still alive. His elder brother Gurbachan Singh aged 60 years was also still alive and in good health. In this situation it is quite legitimate to conclude that the deceased but for the accident was likely to live upto the age of 70 years and the life was cut short by thirty years.

(ii) The widow of the deceased Deep Kaur was only 34 years of age at the time of the accident. Out of three children the eldest son Inderpal Singh was aged 15 years and was studying in 9th class. The second son Amarjit Singh was aged 14 years and was also studying in the Public High School. The youngest daughter Kumari Parvinder Kaur was aged 6 years and was studying in 2nd standard.

(iii) As Deep Kaur had three children at the time of the fatal accident and keeping in view her age there was very little likelihood of her going in for second marriage in the social set-up in Indian society.

(iv) According to the evidence of Deep Kaur A. W. 4 widow of Attar Singh deceased, Attar Singh was a partner in the hotel and restaurant business with Gurbachan Singh (R.W. 4) his elder brother, which was the main source of income. After the death of Attar Singh his sons were taken as partners in the said business. According to Gurbachan Singh, this partnership was dissolved in 1973 i.e. three years after the accident and the restaurant business was placed in the charge of the two sons of Attar Singh. However, at that time the two sons were only 13 and 17 years of age respectively. In view of their young age they were not expected to have completed their education by that time and they were not likely to have run the business on their own as affectively as their father. According to the statement of Deep Kaur, she and minor sons became partners in the restaurant business. It is very likely, that as the two sons were minors in 1973 when they were associated as partners, they were associated through their mother Deep Kaur. According to Deep Kaur no money had been paid to her or her children for the last three years out of the income of the restaurant business. Gurbachan Singh (R.W. 4) in his statement did not produce the record pertaining to the joint business.

(v) Besides the two minor sons, the youngest child namely Parvinder Kaur daughter of Attar Singh was only 6 years of age at the time of accident. Her education was likely to continue for atleast 14/15 years more and she was not likely to be married before 15/16 years.

According to the learned Counsel for the Appellants as the restaurant business run by Attar Singh. deceased as a partner was continued by the two sons, the surviving family, in fact, did not suffer any loss on account of the death of Attar Singh and as such they were not entitled to any compensation. On the other hand it was highlighted by the learned Counsel for the Respondents that the widow of Attar Singh was not educated nor experienced in any business the two sons though associated as partners, were minor and yet in their teens. Even after attaining majority they were likely to continue their education for some years more and before at least 10 years they could not be expected to have the maturity and experience of life to run the hotel business as effectively as their father did. Besides, the education of the daughter of Attar Singh was to be continued and arrangement had to be made for her marriage etc. Keeping in view all the circumstances and the minority of the three children the contention of the learned Counsel for the Appellants cannot be agreed to. Though technically the business of Attar Singh was continued inasmuch as minor sons were made partners but in view of their tender ages, inexperience and immaturity the restaurant business was very likely to suffer. If the life of Attar Singh had not been cut short pre-maturely on account of the fatal accident the two minor sons were bound to have gone in for higher education and much better avenues of life would have been available to them. The Tribunal assessed the annual dependency from Attar Singh deceased at Rs. 5,000/- per annum but no reasons were given for arriving at this small figure though the annual income was not less than Rs. 18,000/-. The determination of the total amount of compensation by multiplying the annual dependency of Rs. 5,000/- by 25 on the ground that the life has been cut short by 25 years was patently contrary to the ratio of the Full Bench decision in Lachman Singh and Ors. v. Gurmit Kaur and Ors. 1979 A.C.J. 170. Keeping in view all the circumstances of the case and the evidence on record, as held above the annual dependency is fixed at Rs. 12,000/- and multiplier for the purpose of calculating the total amount of compensation is fixed at 10 which will meet the ends of justice. Thus the total amount of compensation is assessed at Rs. 1,20,000/-. However, 25% of this amount has to be excluded on account of contributory negligence of the deceased as held above. Under the circumstances it is held that the claimants Respondents are entitled to a compensation of Rs. 90,000/- as against Rs. 1,28,000/- awarded by the Tribunal.

The learned Counsel for the Appellants had placed reliance on judgment dated 4th May, 1971 by S.S. Sandhawalia, J. (as he then was) in Mohinder Singh and Anr. v. Smt. Ind Kaur F.A.O. No. 98 of 1967 decieded on 4.5.71, to canvass the proposition that in cases where the business of the deceased was continued by the claimant the latter was not entitled to any compensation as no loss can be held to accrue to him on account of the death. In the said case it was proved by the evidence of the Accountant of the firm in which the deceased was a partner that the said firm continued the business after the fatal accident and the share of the deceased continued to be paid to the claimants. After perusing the entire evidence on record conclusion was reached that on the admitted facts of the case it could not be said that the claimant had in fact suffered any pecuniary loss whatsoever by the death of the deceased. It was in these circumstances that the claim petition was dismissed in appeal. In the present case though the business has been continued after the accident yet there is absolutely no evidence on the record as to what is the income from the restaurant business after the accident and how much amount fell to the share of the two minor sons. According to Deep Kaur widow of the deceased the claimants had not been getting any amount out of the said business upto the time of making her statement. Though Gurbachan Singh (R.W. 4) brother of the deceased was produced by the Appellants yet the record of the business was not placed on the record nor were any steps taken to produce the relevant evidence with regard to the actual income out of the restaurant business after the fatal accident, nor was any effort made to produce any return or copy of orders of assessment by the Income Tax Authorities accuring to the two minor sons after the accident.

It is further told that out of this amount of compensation the two sons will get l/3rd in equal shares, the widow will get l/3rd and the daughter l/3rd. The amount awarded to the daughter Parvinder Kaur will be deposited in some nationalised bank in her name which will be withdrawn only by her after she attains majority.

The learned Counsel for the claimants Respondents has urged that in view of the decision of the Division Bench of this Court in Brij Mohan Singh and Anr. v. State of Punjab and Ors. 1979 A.C.J. 491, interest at the rate of six per cent per annum ought to be allowed from the date of the claim petition. The learned Counsel for the Appellants has not been able to point out any special circumstances as to why this salutary principle regarding interest should not be followed in the present case. It is, therefore, ordered that the Appellants will be liable to pay interest on the amount of compensation awarded at the rate of six percent per annum from the date of the claim petition till the date of payment.

It is not disputed that the truck in question was insured with the Oriental Fire and General Insurance Co. Ltd., Appellant No. 1, and u/s 95 of the Motor Vehicles Act, 1939, as amended, the insurance company was liable to pay compensation upto Rs. 50,000/-. According to the learned Counsel for the Appellants Nos. 2 and 3, it may be specified that the compensation upto Rs. 50,000/- will be recoverable from the insurance company and only the balance from the remaining Appellants Nos. 2 and 3. The learned Counsel for Appellant No. 1 had to concede this principle of law. It is consequently held that out of the total amount of compensation of Rs. 90,000/- as awarded. Rs. 50,000/- will be payable by the insurance company, Appellant No. 1, and the remaining amount of Rs. 40,000/- by Appellants Nos. 2 and 3, the owner and the driver of the truck respectively, whose liability will be both several and joint. However, as held above, the amount of compensation will be payable alongwith interest. With this modification the appeal and the cross-objections are partly allowed. However, there will be no order as to costs.