JUDGMENT K. Narain, J.
1. An accident took place on 11th June, 1978, at about 11.00 a.m. near bus station, Sarsaul, Police Station Maharajpur, District Kanpur, in which one Kunwar Bahadur died. The deceased was travelling in truck bearing registration No. USA 1062 in which his goods were loaded for transport from Kanpur to Khaga. The truck overturned at the time of accident killing the deceased. Mohammad Rasid and Abdul Rahim, the appellants before this court, are owners of the said truck. A claim petition was brought against them by the legal representatives of the deceased, Jai Devi and others, for recovery of Rs. 1,01,000/- on account of damages, etc. It was disclosed that the truck was insured with New India Assurance Co. Ltd. and, therefore, the said insurance company was contended to be liable to pay the damages. Though various pleas were raised before the Tribunal, it will be of no purpose to go into their details as the position relating to details of accident has been worked out by Tribunal and has not been challenged before me. The Tribunal awarded a compensation of Rs. 28,000/- and costs of Rs. 500/- with interest at the rate of 6 per cent per annum against the owners only holding that the insurance company could not be held liable because the deceased was travelling in a truck which was meant for carrying goods and not passengers. The Tribunal also made apportionment of the amount awarded but that too has not been challenged before me.
2. Mohammad Siddiqui has brought this appeal with the prayer that the claim should have been decreed against the insurance company and the Tribunal was not justified in its finding that in the given circumstances the insurance company could not be held responsible.
3. Upon service of notice of the appeal, cross-objections were brought by Jai Devi and others, legal representatives of the deceased and they prayed that the Tribunal was not justified in limiting the claim to Rs. 28,000/- and in fact should have been decreed for the whole amount, i.e., Rs. 1,01,000/-.
4. After having heard the learned counsel for the appellant, cross-objector and the respondents, it can be safely said that the Tribunal was not justified in refusing the award against the insurance company. The Tribunal had itself made reference to several cases where the insurance company was held liable for damages in the case of death of persons travelling in a truck along with their goods and claims were decreed against the insurance company.
5. The finding of the Tribunal that the deceased was travelling neither as passenger nor as trespasser but was travelling with the permission of the person incharge of the vehicle in course of his employment along with the goods that were being carried in the truck for freight paid and was permitted by the agent of the owner to travel as such has also not been assailed. The Tribunal has itself observed that under law, the owner would thus be vicariously liable for the injuries caused to such a person and this observation was recorded after perusal of the case of Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co. 1977 ACJ 343 (SC). The Tribunal had also referred to the decision in the case of Vanguard Insurance Co. Ltd. v. Chinnamal 1969 ACJ 226 (Madras). However, this decision was not attracted to the facts of the present case as the deceased was not a servant of the owner of the truck. Different considerations come wherein a harm is caused to the servant during the course of employment. Again in the case of Meesala Suryanarayana v. Goli Satyavathi 1979 ACJ 513 (AP), the insurance company was held liable for the injury sustained by the owner of the goods who was permitted to travel with the goods with the consent of the driver. The Tribunal had also referred to the case of Gujarat State Road Transport Corporation v. Malubai Menand 1981 ACJ 36 (Gujarat), wherein the insurance company was held liable to pay the compensation in similar circumstances. A proper reference to this decision was not recorded but that, however, also is not going to make much difference. The cases of Janab Abdul Jabbar Sahib v. Munniammal 1981 ACJ 543 (Madras) and Amur Singh v. Surajmal 1981 ACJ 382 (MP), have different facts. In the former, the driver had given lift to a passenger in an unauthoirsed manner and the latter related to a person whose status as an employee was involved in the decision. Even the Tribunal has come to a conclusion at one stage, "If, on the other hand, the passengers are carried for hire or reward in the truck, the insurance company will be answerable for the claim arising out of the injuries caused to such passengers as a result of accident." In the face of this observation, it remains somewhat ambiguous as to how the Tribunal came to a conclusion that since the truck was overloaded, the insurance company cannot be held liable. The finding seems to be somewhat misconceived and cannot be sustained.
6. It may also be mentioned in addition to the reasons considered in the abovesaid decision that the liability for negligence is dependent upon the relationship of the parties concerned; whether the person wronged was licensee, invitee or a trespasser. In the case of a person travelling with the goods in a truck, the position will be one of an invitee as he has paid the transporter something for his travel also though it may not be possible to demarcate what has been paid as fare and what as freight, that being a composite deal. The question whether it was against law or not will not affect the convenience of the passenger.
7. The quantum of damages awarded by the Tribunal has been the subject of attack in the matter of cross-objection. The owner of the truck appearing in the appeal had not opposed the cross-objection and nobody had challenged the facts relating to the accident. I have gone through the judgment and would only like to say that the mere fact that the truck was overloaded and was carrying persons in excessive number and that too over and above the load of the goods, by itself was a negligent act making the vehicle prone to accident, but at the same time having seen it in this situation and even then boarding, it might be an act of contributory negligence.
8. The Tribunal has taken pains to arrive at the amount of compensation. The principles of law laid down in the case of Gobald Motor Service Ltd. v. R.M.K. Veluswami 1958-65 ACJ 179 (SC), are salutary and may be reproduced here with benefit. "Pecuniary loss can be ascertained only by balancing, on the one hand, the loss to the claimants of the future pecuniary benefits and, on the other hand, pecuniary advantage which from whatever source comes to them by reason of death." However, at the same time, it cannot be said that nothing beyond is to be taken into account and that all that comes to the hands of the legal representatives is to be set off against the probable damages. The general income of the deceased and average for the remaining life, expecting it to be around 70 years, less the amount that might have been spent by him on his person or precisely the amount which would have been a liability upon his person, may be a guiding factor. Human life is invaluable and whatever be the amount of damages, it cannot replace the availability and presence of a husband, father or son to the members of the family. The amount of damages is not only a price for the life which has been taken away by the negligence perpetrated but also a price for the negligence of the owner, but where the victim is travelling in the vehicle, he has obviously preferred to take the risk with what is already in the truck and he is an accessory in the breach of normal rules in this behalf.
9. Obviously the deceased was earning Rs. 800/- per month. However, the Tribunal has tried to fix it at Rs. 500/- per month. I find myself unable to agree with the reasoning. No patient can say as to what is the income of his physician nor the illegality to avoid income tax can be a reason for disbelieving the wife or saying that because the deceased had committed a wrong in not paying the income tax, his children should suffer for it. Naturally whatever was being given by the deceased to his wife was after spending money on his ownself or on the shop business. One could at the most expect expenditure of Rs. 100/- per month over the person of the deceased in the house by way of his food, etc. and the remaining Rs. 700 would be loss to the family because of the death of the deceased in the accident.
10. The Tribunal has taken into account the average life span as 60 years. This too seems to be less. One can easily expect a life up to 70. The deceased at the time of the death was 42 years of age and was thus to have 28 years more of life, at least that should be the factor which should have been taken into account. Ignoring the diminishing value of rupee, which can be compensated and set off against the immediate income of the entire amount, the damages should work out in the form 700 x 12 x 28, that is, Rs. 2,35,200/-. However, since the claim is only for Rs. 1,01,000/- the award should be limited to it. Even otherwise also, it must have been reasonable to reduce the amount of Rs. 2,35,200/- to Rs. 1,01,000/- on account of contributory negligence indicated above. Under the terms of the policy, the liability of the insurance company shall remain limited to Rs. 50,000/- only.
11. In the result both the appeal and the cross-objections should succeed and the award of the Tribunal should be modified accordingly.
12. The appeal and the cross-objections are allowed, the award of the Tribunal is modified in the form that the claim shall stand decreed for recovery of Rs. 1,01,000 with costs which shall be Rs. 500/- of the Tribunal and easy in respect of the proceedings in this court. Out of this amount the insurance company shall be liable to pay Rs. 50,000/- only and the rest will be recoverable from the owner. Out of the amount realised first, Rs. 15,000/- and costs shall be paid to the widow Jai Devi and next Rs. 10,000/- shall be paid to the mother Sweta Devi; out of the balance Rs. 10,000/-each shall be paid to each daughter who might have been married by now and the remainder shall be distributed among other children of the deceased and if any of them is minor, his share shall be kept in bank in some interest bearing security to be payable to him/her on attaining the majority. This distribution, however, shall be adjustable, with the consent of claimants and payment to the widow will be a valid discharge of liability. Let the record of Tribunal be sent back at the earliest.