JUDGMENT : B.K. Ray, J. - The insurer-Appellant being aggrieved by the order of the Accidents Claims Tribunal awarding Rs. 10,000/- as damages against it on account of loss of benefits sustained by Respondent Nos. 1 to 5 due to the death of one Mahadev Prasad Agarwal in an accident which took place on 14.11.66 when a tempo car bearing ORR 958 in which the deceased was traveling overturned has filed this appeal. 2. The short facts as per the cases of the respective parties are narrated below: The deceased Mahadev was coming on 14.11.66 from Kantabanji to Patnagarh in the tempo car referred to above. At a short distance from Belpara due to high speed and defective brake in the vehicle, it while negotiating amend on the road turned upside down as a result whereof Mahadev sustained injuries and died. Respondent Nos. 1 to 5, of whom, Respondent No. 1 is the widow and Respondent Nos. 2 to 5 are the sons of Mahadev filed an application u/s 110-A of the Motor Vehicles Act, 1939 (hereinafter called the 'Act') claiming compensation at Rs. 50,000/-. The owner of the vehicle and the present Appellant, the insurer were arrayed as opposite party Nos. 1 and 2 respectively in the said application. Opposite party No. 1 did not contest the case. The defence of the Appellant before the Tribunal was that at the time of the accident the vehicle which had been insured as a taxi was being used as a private carrier and such user not being in accordance with the terms of the policy, the insurer was not liable for any damage, if any, sustained by the Petitioners; as a result of the accident. The further defence of the insurer was that the tempo car at the time of the accident was carrying 9 passengers including the driver and the deceased against its sitting capacity of 7; that at the relevant time the tempo car had no route permit to go on the road where the accident occurred, that the driver driving the vehicle had no licence and that the claim of damage was high and excessive. 3. 3. The allegation of the claimants that the tempo car was being driven rashly in a very high speed and that its brake was defective at the relevant time although asserted in evidence was not controverter at all before the Tribunal during enquiry by those who were opposing the claim. It was admitted by the witness examined on behalf of the insurer that the policy by which the tempo car had been insured covered the period when the accident took place. The defence available to an insurer is indicated in Section 96(2) of the Act. The said provision in the Act clearly lays down that if an insurer can reserve its right to take all the defence available to the assured in the policy itself, then only with permission of the Tribunal it can take such defence. In the case before me, however, it is nobody's case that the insurer-Appellant was entitled to take any defence other than that mentioned in Section 96(2) of the Act. On examination of the evidence and documents relied upon by the parties in the case, I agree with the finding of the Tribunal that the insurer has not been able to make out a case available to it under the law by which it can get itself exonerated from the liability. But u/s 95 of the Act, as it stood before amendment, at the time of the accident the liability of an insurer was limited to Rs. 4,000/- only. Therefore, the insurer in no circumstance can be made liable to pay more than Rs. 4,000/- for the damage sustained by Respondent Nos. 1 to 5. This position is also not disputed by Mr. Ranjit Mohanty, learned Counsel for Respondent Nos. 1 to 6. The Tribunal, however, contrary to the provision of law has directed the Appellant to pay a sum of Rs. 10,000/- as damages. It is only this portion of the award which is objected to by Mr. Debananda Misra, learned Counsel for Appellant. In view of the aforesaid provision of law, this appeal therefore has to succeed in part and the liability of the insurer has to be reduced to Rs. 4,000/- from Rs. 10,000/. 4. Coming to the cross-objection filed by Respdt. Nos. 1 to 5, Mr. Debananda Misra, learned Counsel for Appellant. In view of the aforesaid provision of law, this appeal therefore has to succeed in part and the liability of the insurer has to be reduced to Rs. 4,000/- from Rs. 10,000/. 4. Coming to the cross-objection filed by Respdt. Nos. 1 to 5, Mr. R. Mohanty, learned Counsel contends that the estimate of damage made by the Tribunal is too inadequate and against all established principles accepted in different judicial pronouncements of different High Courts and of the Privy Council. It is urged that even without any evidence regarding the amount the deceased was spending over Respondent Nos. 1 to 5 in view of the income of the deceased as appears from the assessment order (Ex.1), the Tribunal should- have held that the annual income of the deceased in the year of his death was Rs. 20,744/-, and therefore, it should have apportioned this between the deceased and his dependents in the ratio of one-third and two-thirds. Mr. S. Misra-2, learned Counsel for the owner strenuously urges that in order to enable the claimants to a higher compensation it was incumbent upon them to place materials before the Tribunal not only about the income the deceased was having at the time of his death, but also the amount he was spending over the Respondents. In the instant case, according to Mr. Misra, there being nothing to show as to how much the deceased was spending over Respondent Nos. 1 to 5, it is not open to them now to claim compensation higher than what has been awarded by the Tribunal. These respective contentions of learned Counsel for both parties require careful consideration. 5. The income of the deceased as appears from Ex. 1 was Rs. 20,744/- for the assessment year 1964-65. Before assessment of income was made for the subsequent year, the deceased met with death in the accident. So far as the next year, i.e. 1965-66 is concerned, the income of the deceased's eldest son has been assessed at Rs. 13,252/-. There is no dispute that this assessment of income is from the business which the deceased was running before his death. The deceased met with death after the close of the assessment year 1965-66. Hence, it can safely be said that the aforesaid sum of Rs. 13,252/- as per Ex. 13,252/-. There is no dispute that this assessment of income is from the business which the deceased was running before his death. The deceased met with death after the close of the assessment year 1965-66. Hence, it can safely be said that the aforesaid sum of Rs. 13,252/- as per Ex. 2 was the income of the deceased in the year just proceeding his death. On this basis the deceased's monthly income at the time of his death can be roughly said to be Rs. 1,000/- in the minimum. According to Mr. Mohanty, in the absence of any evidence, two-thirds of Rs. 1,000/-, i.e., Rs. 666/- should be taken to be the amount which the deceased was spending over his wife and children who are Respondent Nos. 1 to 5. The law on the point of assessment of compensation in a case like the present one has been well settled. The following observation from the decision reported in Kassam v. Kampala Aerated Water Co. Ltd. 1965 W.L.R. (P.C.) 668 is extracted below: That the aim in assessing damages in a case such as this was to estimate the loss of reasonable expectation of pecuniary benefit, which must in most cases be a matter of speculation and might be conjecture, and that pure arithmetic did not always lead to a just result where there were so many imponderables. The above observation clearly lays down that in a case of the present nature where a Tribunal has been called upon to assess the damage, there is bound to be some speculation and conjecture. The decision reported in Gobald Motor Service Ltd. and Another Vs. R.M.K. Veluswami and Others, further clarifies the law on the point. The following observation of their Lordships of the Supreme Court from the said decision may be quoted below: In calculating the pecuniary loss to the dependents many imponderables enter into the calculation. Therefore, the actual extent of the pecuniary loss to the dependents may depend upon date which cannot be ascertained accurately, but must necessarily be an estimate, or even partly a conjecture. Therefore, the actual extent of the pecuniary loss to the dependents may depend upon date which cannot be ascertained accurately, but must necessarily be an estimate, or even partly a conjecture. Shortly stated, 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 benefit 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. That decision also has laid down that the burden of proving the loss lies on the claimants. On the authority of the aforesaid two decisions the position that emerges is that there must be some element of speculation or conjecture in assessing the damage and while so assessing a balance has to be struck between the loss of pecuniary benefit on the one hand and the gain due to acceleration of succession to the estate of the deceased, to receipt of any amount that becomes due to the claimants on a Life Insurance policy held by the deceased and to the lump sum payment of damages at one time that has to be paid on account of death of the deceased on the other. While calculating the loss of pecuniary benefit, the onus as per the Supreme Court rests on the claimant. Does it therefore follow that where a claimant has not led any evidence to help the Tribunal in determining the pecuniary loss sustained by him and the only evidence led by the claimant is about the income of the deceased at the time of the accident, the claimant is to be denied any relief by way of damages, because he has not discharged the onus of proving the pecuniary loss arising out of the death of the deceased ? In my view; since the final assessment of damage, has always to be made on some sort of speculation and conjecture, a claimant cannot be denied damage merely because he has not led any evidence to prove the loss of pecuniary benefit to him. Here also, in my view, the Tribunal taking into consideration all the facts and circumstances has to indulge in some sort of speculation or conjecture and to assess the damage. Here also, in my view, the Tribunal taking into consideration all the facts and circumstances has to indulge in some sort of speculation or conjecture and to assess the damage. I am supported in my view by some decisions of different High Courts which are noticed below: In Ishwari Devi v. Union of India 1968 A.C.J. 141 their Lordships have observed as follows: Sham Lal's income from the firm's business was found by the Claims Tribunal as Rs. 1,450/- per month. This is not questioned by either of the learned Counsel. How much out of this amount was being spent by Sham Lal for himself and for each of the Appellant (Appellants) is a matter for determination according to the evidence on the record But no evidence was led by either party regarding the same. In the absence of any evidence adduced by the parties, the court can only try to guess what the deceased must have been reasonably spending. As there does not seem to be any other way. There is no evidence in the case to show if Sham Lal was laying by any portion of his income. In the circumstances, we think we can reasonably assume that he must have been spending about Rs. 450/- for himself, i.e. for his personal requirements, and about a sum of Rs. 250/- towards other general expenses, leaving a balance of Rs. 750/-, which he may be taken to have been spending for the Appellants (applicants). Therefore, the loss to the Appellants applicants) of the future pecuniary benefit which they would have received from the deceased but for his death may be taken as Rs. 750/- per month, that is the loss of future pecuniary benefit sustained by each of the six applicants was about Rs. 125/- per month. In Hari Chand v. Union of India 1971 A.C.J. 475 his Lordship in a case where the evidence led by the claimants to the effect that the deceased was contributing about Rs. 300/- per month towards their expenses was not believed, still uphold the award of the Tribunal granting compensation to the claimants. In Jaswant Kaur v. Ratti Ram 1971 A.C.J. 31 the deceased was found to be earning Rs. 675/- per month at the time of his death. Without any evidence his Lordship hold that in all probabilities the deceased must be held to be contributing Rs. In Jaswant Kaur v. Ratti Ram 1971 A.C.J. 31 the deceased was found to be earning Rs. 675/- per month at the time of his death. Without any evidence his Lordship hold that in all probabilities the deceased must be held to be contributing Rs. 450/- every month keeping the balance for his own expenses. This conclusion was reached because in our society generally a bread-winner always contributes the maximum towards the maintenance of his family. In Punjab Roadways v. Sohan Devi 1971 A.C.J. 185; Mr. C.G. Suri, J. has observed as follows: As regards the quantum of compensation, the deceased was earning a living as a carrier of goods on his cart in a busy commercial town of Batala. The learned Tribunal may appear to have been rather strict in determining his income to be only about Rs. 2.50 to Rs. 3.00 per day. The fact that he was married and had four children would imply that a substantial part of his income was being utilized for the maintenance of this big family. In Gargi Devi v. The State of Punjab 1968 A.C.J. 30, his Lordship D.K. Mahajan, J. observed as follows: The basis on which the Tribunal calculated the compensation may be mentioned: According to the Tribunal, Rs. 100/- per mensem was the remuneration which the deceased got from the Electricity Board. His family consisted of himself, his wife and six children; in all eight. The deceased was forty years of age at the time of his death. The Tribunal has deducted a sum of Rs. 40/- per mensem towards the amount which the deceased utilized for himself alone and held that Rs. 60/- was the benefit to the family. The Tribunal multiplied 60 x 12; and then further multiplied the figure by 15, that is the fifteen years for which the deceased would have continued to be in service, and thus the figure of Rs. 10,800/- was arrived at. The learned Counsel for the Appellants has, in the first instance, challenged the fixation of the period of fifteen years. According to him, the deceased was a technician and in the ordinary circumstances would have continued up to the age of 58 year in Government service; and in any case, would have earned for beyond the age of 60, but in any case, he could have easily earned this amount up to the age of 60. According to him, the deceased was a technician and in the ordinary circumstances would have continued up to the age of 58 year in Government service; and in any case, would have earned for beyond the age of 60, but in any case, he could have easily earned this amount up to the age of 60. Therefore, the minimum period, for which the benefit would have been available to the family, would be 20 years and not 15 years. It is further urged that the figure of 40 fixed by the tribunal for the personal expenses of the deceased is far too high. He had a family of eight persons to support including himself. In the circumstances, it appears to me that the deduction of Rs. 40/- per mensem is far in excess, considering the needs of the family. I accordingly reduce the deduction from Rs. 40/- to Rs. 30/-. In Krishnamma v. Alice Veiges 1966 A.C.J. 336 it has been held that while determining the quantum of compensation to be awarded to the legal representatives, the first thing which has to be done is to ascertain the amount of wages which the deceased was earning at the time of his death Then it has to be found out how much the deceased would have been required to spend for himself for his own personal expenses. The balance thus left will be the basic figure which has to be turned into a lump sum by multiplying it by a number of working years of expected duration of life of the deceased. The sum thus arrived at has to be taxed down as the dependents are getting the amounts in one lump sum and secondly on account of uncertainties of life. In Suman v. Genl. Manager, M.P. State Road Transport 1970 A.C.J. 280 their Lordships have observed as follows: The deceased, at the time of the accident, was drawing Rs. 125/- per month, as stated by the Appellant and not rebutted by the Respondent. He would have naturally got annual increments. The age of the deceased was 32 years. Thus, he would have earned his salary for 23 years and thereafter he would have earned pension for some years at least. As he had a wife and five children, it would only be fair to say that he would have spent R.s.40/- per month on himself; Rs. The age of the deceased was 32 years. Thus, he would have earned his salary for 23 years and thereafter he would have earned pension for some years at least. As he had a wife and five children, it would only be fair to say that he would have spent R.s.40/- per month on himself; Rs. 40/- on his wife; and Rs. 45/- on his children. The loss to the wife would, therefore come to about Rs. 11,040/-. The loss to the children on an average of 12 years would come to Rs. 6,480/-. The total on this calculation comes to Rs. 17,520/-. Since the Appellant would get a lump sum which she can deposit in the bank and earn interest until she requires large sums either for marriage or education of the children, we think that Rs. 15,000/- will be reasonable compensation to be awarded. In M.P. State Road Transport Corporation v. Basantibai 1971 A.C.J. 328 the deceased was a young man of 32 years. He was earning about Rs. 200/- per month. It was held that but for his death he would have continued to earn the same amount till at least the age of 55. The Plaintiffs who were his dependants were his widow aged 32 and three minor sons aged 8,4 and 1J years. In this context, it was held that the deceased while he was alive must have been spending nearly Rs. 125'- per month for the maintenance of his dependants which comes to about two-thirds of the deceased's monthly income. 6. In view of the authorities mentioned above, it would be very reasonable to say that in the present case the deceased was spending Rs. 666/- per month over his dependents, viz., Respondents Nos. 1 to 5. The deceased at the time of his death was only 44 years. The normal expectancy of his life can safely be taken to be 60 years. Therefore, he would have earned at the rate of Rs. 1,000/- per month for another sixteen years. The pecuniary loss therefore to Respondents Nos. 1 to 5 would be Rs. 666 X 12x16 which comes to Rs. 1,27,872/-. It may be mentioned here that the deceased was running a business and this business after his death has been inherited by his widow and his children. 1,000/- per month for another sixteen years. The pecuniary loss therefore to Respondents Nos. 1 to 5 would be Rs. 666 X 12x16 which comes to Rs. 1,27,872/-. It may be mentioned here that the deceased was running a business and this business after his death has been inherited by his widow and his children. Taking into consideration the uncertainties of life, the fact that the claimants have inherited the business left by the deceased and the fact that the claimants would get a lump sum, I fix the compensation at Rs. 50,000/-. 7. In the result, therefore, both the appeal and the cross objection succeed in part. In view of the fact that the pecuniary loss sustained by Respondent Nos. 1 to 5 has been assessed at Rs. 50,000/-, 1 direct that the Appellant-insurer shall pay to Respondents Nos. 1 to 5 a sum of Rs. 4,000/- out of the aforesaid sum of Rs. 50,000/- and that the balance Rs. 46,000/- shall be paid by the owner (Respondent No. 6) to Respondents Nos. 1 to 5. The award of the Tribunal is modified accordingly. Parties are to bear their own costs. Final Result : Allowed