The amount received from a life insurance policy on the death of the deceased is not liable to be deducted from the compensation to which the plaintiffs are entitled.

JUDGMENT :

Chandurkar, J.

1. This appeal by defendant No. 1 against the judgment and decree of the Civil Judge, Senior Division, Thane, awarding compensation of Rs. 1,49,400 under the Fatal Accidents Act, has been referred to the Full Bench by the Division Bench consisting of Dharmadhikari and S. J. Deshpande JJ. as they felt that the decision of another Division Bench of this court in Jaikumar Chhaganlal Patni and Others Vs. Mary Jerome D'souza and Others, , in so far as it took the view that the amount received from a life insurance policy on the death of the deceased was liable to be deducted from the compensation to which the plaintiffs were entitled, required reconsideration.

2. Since the whole appeal has been referred to the Full Bench, it becomes necessary to briefly state the facts leading to the present appeal.

3. Original plaintiffs Nos. 1 to 5 are the legal representatives of deceased, Narayan Shetty. Plaintiff No. 1 is the widow of deceased Narayan. Plaintiff No. 2, who was then a minor, is his son. Plaintiffs Nos. 3 and 4 are his daughters and plaintiff No. 5 is the mother of the deceased. It is not now in dispute that on December 7, 1969, at about 10 a.m., when the deceased was driving his motor vehicle No. MRC 3011 and was proceeding from Thane on Agra Road towards Bhiwandi side, there was a collision with a motor lorry of the appellants which was driven by the driver, Damodar, from the opposite direction. The motor car was heavily damaged. Narayan Shetty sustained serious injuries and he succumbed to these injuries on the same day at 1.30 p.m. in the Civil Hospital at Thane. Narayan Shetty was about 45 years of age at the time of his death. He had taken technical education in Germany in 1965 and in 1966, had started his own industry called Rubber Products Pvt. Ltd. of which he was a managing director and was drawing a salary of Rs. 2,500 per month. In addition, he was earning commission on sales.

4. In the suit filed by the plaintiffs for compensation under the Fatal Accidents Act, the plaintiffs claimed Rs. 2,50,000 as damages under different heads specified in Sch. A to the plaint, with which we are not concerned at this stage. Out of the amount of Rs. 2,50,000, the pecuniary loss to the estate of the deceased was estimated at Rs. 2,30,000 and Rs. 20,000 was claimed on account of pain and suffering prior to the death and shortening the expectation of life.

5. The defendants, namely, the present appellant, and defendant No. 2, M/s. South India Insurance Co. Ltd., Bombay, contested the claim of the plaintiffs that the accident was a result of rash and negligent driving by the driver of the lorry of defendant No. 1 and their case was that the accident occurred due to the negligence of the deceased himself and the appellant-company in fact claimed to be entitled to Rs. 5,199.41 as damages caused to their lorry by the car of the deceased. Defendant No. 2, the insurance company, pleaded that it was not liable to pay anything to the plaintiffs in excess of Rs. 20,000, which was the statutory limit.

6. On evidence given before the trial court, it was found that defendant No. 1's driver, Damodar, had driven the lorry rashly and negligently and thereby knocked the car which was driven by the deceased, Narayan. The plea of contributory negligence of the deceased was negatived. While dealing with the question of determination of quantum of compensation, the trial court found that if the deceased was alive, the net gain of the members of the family would have been Rs. 1,000 per month of Rs. 12,000 per year. Holding that the deceased, Narayan, would have led an active earning life till 60 years and on the finding that the age of the deceased, Narayan, at the time of death was 45 years and that he was a healthy man with a robust constitution, the trial court found that the deceased's family had lost the benefits of the finan