Misra, J. - (1.) The question raised in this appeal is of great importance on which the High Courts in India are divided. Importance of this question is underlined and revealing since 19th century where there is full debate in the English Courts having divergent views leading to legislation and amendments to set at rest this controversy. So far as our country is concerned, as aforesaid, we have divergent views of the various High Courts, but so far this Court, it has not dwelled this question in depth, except passing references in a few cases to which we shall be referring later.
(2.) The question is, whether the life insurance money of the deceased is to be deducted from the claimants' compensation receivable under the Motor Vehicles Act, 1939 The minimum matrix of the facts to appreciate the controversy is stated hereunder: The husband of appellant No. 1, father of appellants Nos. 2 to 6, was travelling in the Maharashtra State Road Transport Corporation bus from Rathare Badruk to Pune on 12th April, 1973 at about 4.00 P.M. when this bus passed the village Umbraj and came near village Kotri near milestone No. 89/4, Karnataka State Transport bus was seen coming from the opposite direction, i.e., from Satara side towards Kolhapur. The drivers of the two buses were not able to control their buses resulting into collision between the two, seriously injuring the deceased claimant Rebello and Mr. Vincy John Pereira, in which Mr. Rebello received multiple fractures and died on the spot. The appellants filed a Special Civil Suit No. 24 of 1975 against the aforesaid two State Road Transport Corporations. It was averred in the plaint that the deceased was aged about 40 years and was the sole bread winner of the family. He was a well known boat builder and businessman of the Bassein. He was doing business in partnership under the name and style of Marine Engineering Works. He was a person of great skill and hard worker. He was a person of robust health and sober habits. His income from the business and other activities was about Rs. 40,000/- per annum. He was assessed for an income of about Rs. 43,000/- by the Income Tax Authorities for the Assessment year 1971-72. Being the sole bread winner, he used to provide the family with the support of Rs. 25,000/- per year. The claim made by the appellants for damages/compensation under the various admissible heads of damages was for Rs. 4 lacs. The claim of the appellants was allowed by the Civil Judge, Senior Division, Satara, holding that the death was caused due to rash and negligent driving on the part of the driver of respondent No. 2, namely, Karnataka Road Transport Corporation. It was also held that the deceased had supported his family with an amount of Rs. 25,000/- per annum. It was found that as the deceased was of 40 years old at the time of his death and his father had lived upto the age of 85 years, the normal longevity of his life would have been 25 years from the date of death, but since the claimants had claimed a compensation only taking a period of 20 years, the Trial court held that the appellants were entitled to a compensation of Rs. 3,80,000/- by way of pecuniary loss and Rs. 10,000/- on account of pain and suffering, in total Rs. 3,90,000/-. However, in view of the Division Bench judgment of the Bombay High Court in Jaikumar Chhaganlal Patni v. Mary Jerome D'souza, AIR 1978 Bombay 239 the Trial court deducted the amount of life insurance received by the appellants to the tune of Rs. 3,15,067.95 p. from the aforesaid compensation calculated and held that only the balance amount of Rs. 74,939.05 p. with interest at the rate of six per cent per annum is payable by the respondent No. 2 to the claimants.
(3.) Through the witness Shashikant Dattatraya Kale, Exhibit 67, who was serving in LIC at Bombay, it was elicited that the deceased claimant had insured his life under the said policy. The claimants were entitled to get an amount of Rs. 4,40,193.65p, out of which an amount of Rs. 1,52,125.70p was deducted by way of estate duty and the remaining amount of Rs. 3,15,067.95p was paid to the aforesaid heirs. It is this amount, as aforesaid, which was deducted in view of the decision of the Bombay High Court referred to above. On appeal, preferred both by the appellants and also the respondents, the High Court rejected to cross appeal of respondent No. 2, namely, Karnataka State Road Transport Corporation. However, the appeal (No. 209/81) of the appellants was dismissed as it could not be pressed in view of the decision of the Bombay High Court, as aforesaid. It is against this judgment, this appeal has been preferred by the appellants.;