SHARDABEN JAYANTILAL SHAH v. R. S. BELSARE — 1977 DIGILAW 57 (GUJ)

J. B. MEHTA, P. D. DESAI, J. ( 1 ) THE petitioners dependents of the deceased defaulter assessee Jayantilal R. Shah alias Maniar have filed this petition challeng- ing the order dated March 28 1977 at Annex. B by the Tax Recovery Officer rejecting the petitioners objections against the attachment of the compensation amount awarded to them by the Motor Accident Claims Tribunal in its decision at Annex A dated August 25 1975 The petitioners have challenged this decision of the Tax Recovery Officer as being ultra vires depriving the petitioners of their fundamental rights to hold this compensation moneys which have been awarded to them in their own right by the competent Tribunal ignoring the settled law and proceeding on extraneous considerations The deceased assessee Jayantilal had met with an accident while he was travelling on 16-8-73 along with the petitioners in a motor taxi from Limbdi to Ahmedabad when the motor taxi collided with S. T. Bus coming from the opposite side. The assessee Jayantilal thereafter expired on account of the injuries received in this motor accident on August 15 1973 The Claim Applications Nos. 118 to 125 of 1973 had been filed before the Motor Accident Claims Tribunal and a common award was made on August 25 1975 by the Claims Tribunal in all these matters. So far as the petitioners personal injuries were concerned the amount of compensation awarded to them for their personal injuries was of Rs. 47 300 and at one stage it was also sought to be attached by the Tax Recovery Officer but at the time of the earlier writ petition the said attachment was removed and the authorities had agreed to hear the objections of the petitioners as regards this particular claim in application No. 121 of 1973 which had resulted in the award in respect only of the death of the deceased Jayantilal and where the total sum of Rs. 69904/ was awarded including Rs. 30 (30. 00 as damages for loss of expectation of life. Even the petitioners do not dispute that this amount of Rs. 300/ would go to the estate of the deceased and would be attachable. The petitioners have confined this petition only to the claim of the balance amount of Rs. 59904. 69904/ was awarded including Rs. 30 (30. 00 as damages for loss of expectation of life. Even the petitioners do not dispute that this amount of Rs. 300/ would go to the estate of the deceased and would be attachable. The petitioners have confined this petition only to the claim of the balance amount of Rs. 59904. 00 which has been awarded only to these dependents by the Claims Tribunal in their own right by assessing maintenance element or dependency benefit as a loss which had resulted on account of the death of the deceased to these petitioners dependents alone. The respondent Tax Recovery Officer however refused to release (he attachment on this amount awarded even to these dependents as dependency benefit on the ground that the right to compensation accrued to the deceased in his life time which only has been awarded to these petitioners legal representatives and therefore the said compensation amount having been lawfully attached in recovery of the dues of the deceased defaulter assessee objection of the petitioner had been disallowed. The authority had also proceeded on the analogy of the principles which had been laid down by this Court in Bharatkumar Manilal Dalals case (1975) 99 I. T. R. 179 in the context of the Estate Duty Act in respect of policy moneys on personal accident policies. The petitioners have challenged this decision as ultra vires and violative of their fundamental rights. Although no affidavit in reply has been filed by the respondent the learned Government Pleader has supported the order and has raised preliminary objection as to the maintainability of this petition on two grounds: (1) that the matter involved disputed questions of facts as to the title to these compensation moneys; (2) that there was a bar of alternative remedy of a civil suit or by filing an appeal under Rule 36 (1) (c) which having not been exhausted the present petition was incompetent. ( 2 ) AT the outset we would consider the relevant provisions of the Income-tax Act and the Schedule II in this connection along with the decision of the Motor Accident Claims Tribunal in this matter as per the order at Annexure A. There is no dispute that the deceased was a defaulter assessee and his name was mentioned in the Tax Recovery certificate received by this respondent Tax Recovery Officer from the concerned I. T. Officer for the recovery of arrears of by recourse to the provisions of the Act and and schedule. Under sec. 222 (1) when an assessee is in default or is deemed to be in default in making a payment of tax the Income-tax Officer may forward to the Tax Recovery Officer a certificate under his signature specifying the amount of arrears due from the assessee and the Tax Recovery Officer on receipt of such certificate shall proceed to recover from such assessee the amount specified therein by one or more modes specified therein in accordance with the rules laid down in Second Schedule one of the modes is specified in clause (a) viz. attachment and sale of assessees movable property. Sec. 26 specifies in clause (1) that notwithstanding the issue of a certificate to the Tax Recovery Officer under sec. 222 the Income-Tax officer may recover the tax by any one or more of the modes provided in the section. Under sec. 23? the several modes of recovery specified in this chapter shall not affect in any way (A) any other law for the time being in force relating to the recovery of debts due to Government (B) the right of the Government to institute a suit for the recovery of the arrears due from the assessee. and it shall be lawful for the Income-tax Officer or the Government as the case may be to have recourse to any such law or suit notwithstand- ing that the tax due is being recovered from the assessee by any mode specified in the Chapter. In the relevant second schedule Rule 1 (b) defines defaulter as the assessee mentioned in the certificate received by the Tax Recovery Officer from the Income-tax Officer for the recovery of arrears under this certificate. In the relevant second schedule Rule 1 (b) defines defaulter as the assessee mentioned in the certificate received by the Tax Recovery Officer from the Income-tax Officer for the recovery of arrears under this certificate. Under Rule 4 if after he issue of notice under Rule 2 if the amount mentioned in the notice is not paid the Tax Recovery Officer shall proceed to realise the amount in any of the modes specified therein including (a) by attachment and sale of the defaulters movable property;rule 11 provides for the procedure of investigation by the Tax Recovery Officer as under: (1) Where any claim is preferred to or any objection is made to the attachment or sale of any property in execution of a certificate on the ground that such pro perty is not liable to such attachment or sale the Tax Recovery Officer shall proceed to investigate the claim or objection: Provided that no such investigation shall be made where the Tax Recovery Officer considers that the claim or objection was designedly or unnecessarily delayed. (2) Where the property to which the claim or objection applies has been advertised for sale the Tax Recovery Officer ordering the sale may postpone it pending the investigation of the claim or objection upon such terms as to security or otherwise as the Tax Recovery Officer shall deem fit. (3) The claimant or objector must adduce evidence to show that (a) (in the case of immovable property) at the date of the service of the notice issued under this Schedule to pay the arrears or (b) (in the case of immovable property) at the date of the attachment he had some interest in or was possessed of the property in question. (4) Where upon the said investigation the Tax recovery Officer is satisfied that for the reason stated in the claim or objection such property was not at the said date in the possession of the defaulter or of some person in trust for him or in the occupancy of a tenant or other person paying rent to him or that be. ing in the possession of the defaulter at the said date it was so in his possession not on his own account or as his own property but on account of or in trust for some other person or partly on his own account and partly on account of some other person the Tax Recovery Officer shall make an order releasing the property wholly or to such extent as he thinks fit from attachment or sale. (5) Where the Tax Recovery Officer is satisfied that the property was at the said date in the possession of the defaulter as his own property and not on account of any other person or was in possession of some other person in trust for him or in the occupancy of a tenant or other person paying rent to him the Tax Recovery Officer shall disallow the claim. (6) Where a claim or an objection is preferred the party against whom an order is made may institute a suit in a civil court to establish the right which he claims to the property. in dispute but. subject to the result or such suit (if any) the order of the Tax Recovery Officer shall be conclusive. Rule 86 then provides in clause (1) that an appeal from any original order passed by the Tax Recovery Officer under this Schedule not being an order which is conclusive shall lie - x x x x (C) in the case of a Tax Recovery Officer being an officer referred to in sub-clause (ii) of clause (44) of sec. 2 to the Tax Recovery Commissioner ). Therefore under these relevant provisions the Tax Recovery Officer in pursuance to the certificate received by him from the Income-tax Officer for the recovery of arrears of defaulter assessee Jayantilal could under Rule 4 (a) realise the amount by attachment and sale only of the defaulters movable property. Under Rule 11 he has to decide these objections and the objector has to adduce evidence under Rule 3 (b) that in case of such movable property at the date of attachment he had some interest in or was possessed of the property in question. Thereafter the Tax Recovery Officer has power under Rule 11 (4) and (5) to deal with these objections by releasing the property attached or by disallowing the claim on being satisfied as specified therein. Thereafter the Tax Recovery Officer has power under Rule 11 (4) and (5) to deal with these objections by releasing the property attached or by disallowing the claim on being satisfied as specified therein. Under Rule 11 (6) the party against whom the order is made is permitted to institute a suit in civil Courts to establish a right which he claims to the property in dispute but subject to the result of such suit if any the order of the Tax Recovery Officer is made conclusive by Rule 11 When this order is made conclusive under Rule 11 (6) it is obvious that under Rule 86 (1) no appeal could lie from this order of the Tax Recovery Officer disallowing the objection claim to the Tax Recovery Commissioner because appeal is provided there against the original order passed by the Tax Recovery Officer which is other than the order which is made conclusive by these rules. ( 3 ) IT is in the context of these relevant provisions that we will have to determine the rival contentions of the parties. We would also consider at this stage what was actually decided by the Motor Claims Tribunal which has been conferred exclusive jurisdiction in supersession of the ordinary civil Courts to adjudicate these motor accident claims and assess compensation in such cases A bare perusal of the decision of the Claims Tribunal at Annex. A reveals that after first finding the negligence established the Tribunal applied its mind to the question of assessing compensation in respect of the death of the deceased The Tribunal had pointed out that one of the claimants applicant No. 2 Rajnikant son of the deceased Jayantilal should be excluded because he was doing some business which would have small earning only enough for himself and his family members. He was therefore not treated as a dependent and he was excluded from the dependent-claimants. Similarly two married daughters who had been joined as opponents Nos. 3 and 4 were also excluded. Therefore out of all legal representatives of legal heirs of the deceased the Claims Tribunal has allowed the claim of compensation only of the widow two sons minor daughter the claim applicants Nos. 1 3 4 and 5 and also the mother who was joined as opponent No. 5 The Claims Tribunal first assessed income of the deceased at Rs. 500. 1 3 4 and 5 and also the mother who was joined as opponent No. 5 The Claims Tribunal first assessed income of the deceased at Rs. 500. 00 per month which is the minimum non-taxable amount under the income-tax laws by making a conservative estimate and therefore the only income of the deceased was assessed at Rs. 6000. 00 per annum. Thereafter as regards the amount spent on the deceased considering this family of 12 consumption units the deceased was held to consume a sum of Rs. 84. 00 per month and deducting that amount the amount left of Rs. 416. 00 per month was held to be spent by the deceased on the family for maintenance of these dependents. Therefore the annual dependency benefit was first worked out at the figure of Rs. 4992. 00. After following the settled legal position laid down by this Court in Hirji Virji Transport v. Bashiran Bibi 12 G. L. R. 783 where settled legal position had been exhaustively examined the Tribunal capitalised this dependency benefit of only these petitioners dependents by 12 years purchase factor looking to the age of the deceased as 50 years. Therefore the Tribunal in terms held that consequently total loss of income to the family viz. the petitioners dependents comes to Rs. 59904. 00 and adding Rs. 3000. 00 as conventional sum for loss of expectation of life the total compensation award to the petitioners must be Rs. 62 904 This exhaustive discussion and the speaking award of the Tribunal makes it in terms clear that the compensation has been awarded not to all the legal representatives or heirs of the deceased but only to these dependents petitioners who are proved to be actual dependents of. the deceased. Therefore the dependency benefit was worked out by way of working out only their maintenance element as the income of the deceased was found to be only Rs. 500. 00 per month and deducting Rs. 84. 00 the sum the deceased would have spent on himself the balance amount of Rs. 416. 00 per month spent on these dependents members was only capitalised by 12 years purchase factor and accordingly the total loss of income to these dependents family members vas held to be Rs. 500. 00 per month and deducting Rs. 84. 00 the sum the deceased would have spent on himself the balance amount of Rs. 416. 00 per month spent on these dependents members was only capitalised by 12 years purchase factor and accordingly the total loss of income to these dependents family members vas held to be Rs. 59 904 The income of the deceased being hardly sufficient for the maintenance of the family members there was no question of an savings being capitalised. Therefore. this was clearly the amount assessed by way of dependency benefit for loss suffered only by these petitioners dependents. An additional amount of Rs. 3000. 00 was added as conventional amount as per our decisions for the loss of expectation of life which alone was awarded to the estate of the deceased and the petitioners got only that additional amount of Rs. 3000. 00 as less to the estate Therefore. a hare perusal of the award of the competent forum which has keen set up by law in supersession of the ordinary civil Courts leaves no doubt that so far as the amount of Rs. 59 204 was concerned which was awarded in equal shares only to these five petitioners dependents. that amount was awarded in their own right for the total loss suffered by them as dependents and it was only the balance amount of Rs. 3000. 00. the conventional amount of loss of expectation for life. which was by way of damages for expectation of life which only can be taken as the loss to the estate which had been received by the petitioners. That is why the petitioners have categorically stated that so far as the compensation given to the estate is concerned of Rs. 3000. 00 they do not challenge the order of the respondent and they have confined their challenge only to the balance amount of Rs. 59 904 which has been awarded to the petitioners as dependent in their own rights. Both the parties have stated that the S. T. Corporation has filed First Appeal No. 259/76 in this matter and these petitioners dependents have also filed an appeal F. A. No. 55/76 for enhancement of the compensation amount and both these appeals are admitted by this Court and are pending in this Court. Both the parties have stated that the S. T. Corporation has filed First Appeal No. 259/76 in this matter and these petitioners dependents have also filed an appeal F. A. No. 55/76 for enhancement of the compensation amount and both these appeals are admitted by this Court and are pending in this Court. It is in this background of the relevant statutory provisions and the decision of the Motor Claims Tribunal that we have now to answer the objections raised in this matter. ( 4 ) SO far as the preliminary objection of the respondent is concerned if we find from the settled legal position that in such cases where the dependents are allowed by capitalising the dependency benefit the compensation claim award to such dependents is in them own right on a cause of action which accrued to them alone for loss caused by tortfeasor in respect of their total dependency benefit is obvious that the question of title to these compensation moneys by way of dependency benefit of Rs. 59 904 is already adjudicated in the exclusive competent forum which is set up in supersession of the ordinary civil Courts of law Therefore this is not a case where the disputed question of facts arise for decision of the the of these petitioners to this compensation amount. Therefore on that ground this petition cannot be thrown out. Even on the second objection the legal position is completely settled by the Full Bench decision of five Judges of this Court in Sp. C. A. No. 1721/1976 and others decided on April 13 1977 (since reported ill Ahmedabad Cotton Mfg. Co. Ltd. v. Union of India A. I. R 1971 Guj. 113: XVIII G. L. R. 714) where the scope of the relevant fetter on the amended Article 226 (3) had been examined in that decision. Art 226k3) provides that no petition for redress in injury referred to in sub-clauses (b) and (c) of clause (i) shall be entertained if any other remedy for such redress is provided for by or under any other law for the time being in force. It was first pointed out that this fetter is not attracted to a petition for enforcement of fundamental rights falling under Article 226 (1) (a) as it is restricted to sub-clauses (b) and (c) only. It was first pointed out that this fetter is not attracted to a petition for enforcement of fundamental rights falling under Article 226 (1) (a) as it is restricted to sub-clauses (b) and (c) only. The second feature with was found in the context of other remedy was that adequate and officious remedy was implicit if the remedy was to be red- dressing the injury as effectively as can be done in the writ petition. The third important feature found was that such remedy was provided for by or under any other law for the time being in force which makes it implicit that this must be a direct remedy specifically provided by or under the specific law in force under which the impugned action or order is made. Reference was made in this context to the relevant portion of the speech of the Union Law Minister while moving the Constitution (Forty fourth Amendment Bill 1970 for consideration in the Rajya Sabha on November 4 1976 Said he :but of course if there is an alternative remedy which is provided in the law under which a particular action is taken or an order is made it is necessary that first that alternative remedy should be exhausted. (Underlining supplied) it was therefore held that this alternative remedy could never be the general remedy of a civil suit which is by way of a collateral attack and which would be available in every case for ultra vires orders unless it is specifically excluded. It was further held that the amplitude of the latter is made dependent on the existence of the other effective alternative remedy which was in terms provided whether by the specific law or under the subordinate legislation of such law. It was in terms held that such alternative remedy must be specifically provided for. The amplitude of the fetter would depend on the amplitude of such alternative remedy which is provided for direct attack by or under the law in question and not on any general remedy of a civil suit by way of a collateral attack. Applying the same ratio it is obvious that as Rule 86 (1) (c) does not provide for appellate remedy against such order which is made conclusive under Rule 11 there is no specific alternative remedy for direct attack in the Act or under these rules enacted in Schedule II in question. Applying the same ratio it is obvious that as Rule 86 (1) (c) does not provide for appellate remedy against such order which is made conclusive under Rule 11 there is no specific alternative remedy for direct attack in the Act or under these rules enacted in Schedule II in question. The learned Government Pleader argued that Rule 11 (6) contemplates civil suit as an alternative remedy created under the Act by this Rule 11 (6) itself. There is no substance in this contention because Rule 11 (6) only emphasis is that the decision of the Tax Recovery Officer on the objection claim under Rule 11 in such summary proceeding is conclusive subject to any civil suit which the objector may file for establishing his right to the property in question. This is in line with the entire scheme of these provisions of summary recovery of the debt created after the assessment order. Sec. 232 reiterated several modes of recovery specified in that Chapter which were not to be exhaustive and the right of the Income- Tax Officer or the Government to have recourse even to other law for recovery of loss due to the Government or by filing a suit in a Court of law was not affected thereby. As points out in Jagdish Pratap v. State of U. P. A. I. R. 1973 S. C. 1059 at pages 1061-1062 as per the settled principles and the consistent view taken by our Courts it is beyond doubt that where a taxing statute provides for a summary mode of recovery and is not exhaustive it is always open to the Revenue to resort to any other mode open to it under the general law for recovery of the tax dues and it was in terms held that even sec. 232 would not imply that it is only by virtue of that specific provision that the legislature had conferred this right upon the Revenue which earlier did not possess. Once debt was created in respect of tax dues State had always right to recover it by any other modes open to in under the general law unless as a matter of policy only a specific mode to the exclusion of any other is prescribed by the law. Once debt was created in respect of tax dues State had always right to recover it by any other modes open to in under the general law unless as a matter of policy only a specific mode to the exclusion of any other is prescribed by the law. It is only in consonance with the same sheme that Rule 11 (6) reiterates corresponding right also of the person concerned whose property is sought to be attached clarifying that the decision of the Tax Recovery Officer in the summary proceeding was conclusive subject to the right of the concerned party to establish his right to the property in question in a competent Court of law by filing a civil suit. Therefore it could never be urged in view of the settled legal position that Rule 11 (6) created this alternative remedy of filing a civil suit. Therefore there being no special alternative remedy created by or under the Act even in the relevant rule in Schedule II the fetter in Article 226 (3) could not be invoked in the present case against the alleged ultra vires order. It is therefore not necessary to rest the decision on the wider ground evolved in that Full Bench decision that at least so far as this purported order is concerned there being no right of appeal specifically provided the mere fact that the order could be a matter of collateral attack by way of general remedy of a civil suit could never come in the way of the petitioners invoking writ jurisdiction of this Court. This writ remedy is the only effective efficacious remedy when in the face of the settled law and the decision of the competent Tribunal these dependents moneys are sought to be attached by the Tax Recovery Officer as the jurisdiction under these relevant provisions to recover these arrears of the defaulter assessee is only from the property of the defaulter assessee and not from the properly of his dependents. There is equally great force in Mr. Kajis contention that so far as the present case is concerned it would fall even under clause (a) of Article 276 itself because the fundamental right of holding property of the petitioners in the shape of compensation moneys awarded to them in their own rights is directly violated by this alleged ultra vires order of the Tax Recovery Officer. Kajis contention that so far as the present case is concerned it would fall even under clause (a) of Article 276 itself because the fundamental right of holding property of the petitioners in the shape of compensation moneys awarded to them in their own rights is directly violated by this alleged ultra vires order of the Tax Recovery Officer. Therefore there is no substance in the preliminary contentions raised by the learned Government Pleader on the alleged two grounds and they must fail. ( 5 ) COMING to the merits the legal position in this connection is now very well settled and unfortunately the respondent Tax Recovery Officer completely overlooked the same and proceeded on such extraneous ground of a decision under Estate Duty Act. The learned Government Pleader rightly did not press in aid that decision in Sharathkumar Manilal Dalal v. Controller of Estate Duty (1975) 99. I. T. R. 179 by the Division Bench consisting of Divan C. J. and B. K. Mehta J. The question in that decision had arisen in the context of two insurance policies where the father of the deceased accountable person was nominated as a beneficiary in both the insurances for receiving the claim amount payable under the policies in case of death of the insured The first policy covered certain travelling expenses against risk of air travel for his journey from U. S. A. to India and back and the other was personal accident policy. The question had arisen in the context of secs. 14 and 15 and secs. 5 and 6 of the Estate Duty Act 1953 A very wide definition was given to the term property in sec. 9 (15) as including any interest in the property movable or immovable the proceeds of sale thereof and any money or investment for the time being representing the proceeds of sale and also as including any property converted from one species into another by any method whatever. Property passing on death has been defined in sec. 2 (16) as including property passing either immediately on the death or after any interval either certainly or contigently and or either originally or by way substitutive limitation and on the death of include at a period ascertainable only by reference to the death It is in the wider context of that legislation that the decision was made. It had been held that even though sec. It had been held that even though sec. 14 covered policy moneys received under policy insurance effected by any person on his life it would not include such accident policy in view of the established connotation of the term life policy. Sec. 15 which was of the widest amplitude because of the words any other interest was held to cover all kinds of interest which had been purchased or provided by the deceased in the nature of annuity or policy other than life insurance policy as passing on his death to the extent of beneficial interest accrued or acquired as a result of death. The contract of insurance contained in the two relevant policies was construed in that case as conferring on the deceased benefit of the policies viz. right to exact a particular amount of damages depending on the loss of limb or life and so the contention was negatived that the deceased had no interest in the policies. Sec. 15 was therefore held applicable as It was only on the death of the insured that the beneficial interest of the father was generated. Even as regards secs. 5 and 6 it was held in view if tie width of the definition of the term property that the property in the nature of interest was in existence in the lifetime of the deceased which passed on his death to the beneficiaries designed or to his legal representatives and therefore that properly was clearly dutiable under sec. 5. In any event the deceased was held to have a right to property under the said policy which he could have disposed of by sale and therefore it was deemed to pass on his death under sec. 6 of the estate duly legislation. This decision in a totally different context could hardly be invoked in the present context even if the said ratio is presumed to be correct ratio on which we are not expression any opinion therefore both the parties rightly did not rely upon the decisions in a totally different context of the estate duty legislation in the context of such contractual insurance accident policies or otherwise and confined only to the settled legal position so far as such motor accident claims were concerned where the whole position has now been well settled by the high authority. ( 6 ) IN Gobald Motor Service Ltd. v. R M. K. Veluswami A. I. R. 1962 S. C. 1 Their Lordships considered the entire settled legal position in the context of such fatal accidents claims both in England and in this country. Referring to the two claims under unamended sec. 1 of the Fatal Accidents Act 1855 and under sec. 2 which in substance respectively corres pondended to the English Fatal Accidents Act known as Lord Campbells Acts and the Law Reform (Miscellaneous Provision) Act 1934 it was pointed out at pages 6 7 and 8 that the cause of action under sec. 1 and under sec. 2 are different While under sec. 1 damages were recoverable for the benefit of the persons mentioned therein under sec. 2 compensation goes to the estate. Whereas under sec. 1 damages were totally in respect of the loss sustained by the persons mentioned therein under sec. 2 damages can be claimed inter alia for the loss of expectation of life. Though in some cases parties entitled to compensation under both the sections may happen to be the same persons they need not necessarily be so persons entitled to benefit under sec. 1 may be different from those claiming under sec. 2. Prima facie as the two claims are to be based upon different causes of action the claimants whether the same or different would be entitled to recover compensation separately under both the heads. That is why when a difficulty arose where the party claiming compensation under both the heads was the same and the claims under both the heads synchronised in respect of a particular subhead or in respect of the entire head it was held that in that situation the party would not be entitled to recover damages twice over in respect of the same wrong. Further proceeding at page 7 Lord Macmillans observation in Davies case in 1942 A. C. 601 at page 610 had been approved as under: The rights of action in the two cases are quite distinct and independent. Under the Law Reform Act the right of action is for the benefit of the deceaseds estate Under the Fatal Accidents Acts the right of action is for the benefit of the deceaseds dependents. Under the Law Reform Act the right of action is for the benefit of the deceaseds estate Under the Fatal Accidents Acts the right of action is for the benefit of the deceaseds dependents. But inasmuch as the basis of both the causes of action may be the same namely negligence of a third party which has caused the deceaseds death it was natural to provide that the rights of action should be without prejudice the one to the other. It was further pointed out that this principle in its application to the Indian Act has been clearly and succinctly stated by a Division Bench of the Lahore High Court in Secretary of State v. Gokal Chand A. I. R. 1925 Lah. 636. In that case Sir Shadi Lal C. J. observed at page 636 as under:the law contemplates two sorts of damages: the one is the pecuniary loss to the estate of the deceased resulting from the accident: the other is the pecuniary loss sustained by the members of his family through his death. The action for the latter is brought by the legal representatives not for the estate. but as trustees for the relatives beneficial entitled: while damages for the loss caused to the estate are claimed on behalf of the estate and when recovered form part of the assets of the estate. Therefore the whole law on this branch was approved and stated as under at page 8:the rights of action under secs. 1 and 2 of the Act are quite distinct and independent. If a person taking benefit tinder both the sections is the same he cannot be permitted to recover twice over for the sane loss. In awarding damages under both the heads there shall not be duplication of the same claim that is if any part of the compensation representing the loss under sec 1 of the Act that portion shall be excluded in giving compensation under sec 2 and vice versa. This ratio is reiterated in the later decision in C. K. S Iyer v. T. K Nair A. I. R. 1970 S. C. 376 at page 378 where after following the Davies ratio the observations of Lord Wright were approved as under:the general nature of the remedy under the Fatal Accidents Acts has often been explained. This ratio is reiterated in the later decision in C. K. S Iyer v. T. K Nair A. I. R. 1970 S. C. 376 at page 378 where after following the Davies ratio the observations of Lord Wright were approved as under:the general nature of the remedy under the Fatal Accidents Acts has often been explained. These Acts provided a new cause of action and did not merely regulate or enlarge an old one As Lord Summer observed in Admiralty Commissioners v. S. S. Amerika 1917 A. C. 35 at page 52. The claim is in the words of Bowen L. J in the Vera Cruz (No 2) (1884) 9 PD 96 for injuriously affecting the family of the deceased. It is not a claim which the deceased could have pursued in his own life time because it is for damages suffered not by himself but by his family after his death. Thereafter at page 379 it was held that even mode of assessment of damages is not free from doubt. It is beset with certain difficulties. Xt depends on many imponderables. Their Lordships approved Davies method of assessing damages by capitalising the loss on the basis of appropriate years purchase factor. At page 380 Their Lordships held that the number of years purchase is left fluid from twelve to fifteen which was quite a common multiple in the case of a healthy man and the number should not be materially reduced by reason of the hazardous nature of occupation of the deceased man. These principles however were only appropriate where the deceased was the bread winner of the family. Following this settled legal position and after reconsidering even the earlier decisions of this Court in Nanda v. Shivabhai 7 G. L R. 662 where Nances method was followed it was held by this Court in Hirji Virji Transport Co. These principles however were only appropriate where the deceased was the bread winner of the family. Following this settled legal position and after reconsidering even the earlier decisions of this Court in Nanda v. Shivabhai 7 G. L R. 662 where Nances method was followed it was held by this Court in Hirji Virji Transport Co. v. Bashiran Bibi 12 G. L. R. 783 that although both Nancess method and Davies method give the same result experienced Judges now follow only Davies method which had now been finally approved by Their Lordships as appropriate for dealing with such cases in C. K. S. Iyers case at page 787 it was pointed out following the settled legal position that the assessment was to be made of the loss suffered by tortious act by making an account of all gain and loss arising as a result of the death of the concerned victim (of course otherwise than as by way of fruits of insurance ). A fair amount of damages has to be assessed not by way of giving any solatium but as a compensation which is proportionate to the injury. For the loss caused under sec. 1a of the Fatal Accidents Act the loss which resulted to the dependents is by way of lossing the amount which would have been spent on them by the deceased during the period of his expected useful life. Under sec. 2 however the loss estimated is of the loss to the estate of the deceased. Under the first head the loss has an element of maintenance while under the second head the loss has a saving element. That is why Their Lordships added in Gobald Motor Service Case (A. I. R. 1962 S. C I.) that the loss under these two heads should not be assessed twice over. In other words there should not be overlapping If therefore from the income of the deceased the amount which had been spent on him is deducted the remaining amount would either be spent on the dependents or would be saved. Loss to the dependents can be arrived at by capitalising the first amount which was the amount spent on the dependents while the second amount can be arrived at by capitalising the saving made by the deceased from year to year. Loss to the dependents can be arrived at by capitalising the first amount which was the amount spent on the dependents while the second amount can be arrived at by capitalising the saving made by the deceased from year to year. Of course the estate could get additional amount by way of a damage for the mental agony suffering and loss of expectation of life. For this damage as per the settled legal position discussed in the earlier decision in Bai Nanda v. Shivabhai 7 G. L. R. 691 damages were to be awarded only as conventional amount which in this country should not be less than Rs. 3000. 00 because conventional damages on this head in England were initially * 200 and were raised to * 500 after devaluation of sterling currency. Thereafter both these methods were considered in Davies and Nances cases and it was pointed out that the same result was reached and how the preference of the experienced Judges was now for the later Davies method which was now finally settled even by the decisions of the Supreme Court in this country. ( 7 ) IN view of the aforesaid settled legal position it is obvious that when the compensation was assessed in the present case for loss of life of such a bread winner by applying Davies method and the learned Tribunal was careful enough to exclude even the heirs and legal representatives like the earning eldest son Rajnikant or the two married daughters it was obvious that the compensation of Rs. 59 904 had been assessed only by way of dependency benefit as the total loss suffered by the petitioners dependents alone. As earlier pointed out the cause of action to these dependents had accrued because the tortfeasors injuriously affected these dependents of the deceased for the first time in their own right on the death of the deceased due to the injuries inflicted to the deceased in this motor accident. As stated by Lord Wright in Daviess case in the aforesaid passage approved by Their Lordships in Iyers case this was a new cause of action and it was not a claim which the deceased could have pursued in his life time for the simple reason that it was for the damages suffered not by himself but by the family members after his death. If this settled ratio was appreciated by this Tax Recovery Officer he could never hold that these petitioners dependents were getting this dependency benefit not in their own right and that the cause of action for this dependency benefit had accrued to the deceased in his life time. That observation of the Tax Recovery Officer is based on a complete misconception of the settled legal position as per the law declared in our country by Their Lordships and therefore the decision of the respondent Tax Recovery Officer is wholly contrary to law as he has sought to attach now the property of the deceased defaulter assessee but the property of the petitioners claimants which they received in their own right and whose title was settled in their favour by the competent Motor Claims Tribunal in the aforesaid decision at Annexure A. ( 8 ) THE learned Government Pleader however vehemently argued that casks might arise where as pointed out by Their Lordships the claimants might be the same claimants under both the heads in secs. 1 (A)and sec. 2 and therefore the compensation may overlap under the two heads. ( 9 ) THE Tribunal may be careful to avoid that overlaping by awarding the same amount twice over but still however the question would have to be considered whether the dependency benefit was capitalised which involved only the maintenance element or even the saving element was capitalised under the first head. If the amount of the deceaseds saving was capitalised as per the aforesaid settled legal position that would go to the estate and to which a further amount by way of loss of expectation to the extent of conventional amount would be added. But that alone is the amount which goes to the estate. The compensation which is assessed for the injurious affection to the family of the deceased by depriving them their dependency benefit or the amount which were spent on them by the deceased as per the settled legal position belongs to the dependents and that is not a claim which the deceased could have pursued in his own life time because it is not for the damages suffered by himself but by the family dependents after his death. In the present case the Tribunal was careful enough to exclude even other family members the eldest son and the two married daughters who were all legal representatives and the heirs of the deceased and who would have claim to the estate of the deceased. While working out the dependency benefit these eligible claimants are not the same. So far as the dependency benefit is concerned it has been estimated on the basis of only 12 consumption units and the loss has been worked out for injurious affection of these petitioners dependents alone. Therefore the whole argument of the learned Government pleader is only academic and could never be advanced so far as the present controversy is concerned. ( 10 ) THE learned Government Pleader next argued that appeals have been filed by both the parties and therefore in addition to this dependency benefit if in appeal some further saving element is also capitalised and added by way of loss to the estate the Revenue should not be precluded from proceeding against it. Mr. Kaji rightly says that he would have no objection that if any such claim is awarded in appeal the authorities would have a right to pursue their remedy against the estate of the deceased in their hands when it is so awarded to them. But so far as the present compensation amount of Rs. 59904. 00 is concerned which has been sought to be attached and which on undisputed facts is only capitalisation of the maintenance element the amount awarded would go to the petitioners dependents alone by way of dependency benefit. Therefore no such technical contention could be raised that even that amount belongs to the estate of the deceased by any stretch of imagination. In that view of the matter so far as this compensation amount of R5. 59. 904/- was concerned the whole order of the Tax Recovery Officer is totally without jurisdiction as in the guise of attaching property of the deceased defaulter assessee he has sought to attach the property of the petitioners as awarded by the competent authority by ignoring the relevant consideration of the aforesaid settled legal position and by taking into account thoroughly extraneous consideration of the ratio of Bharatkumar Manilal Dalals decision which is in the context of estate duty legislation and which has admittedly no bearing in the present context. ( 11 ) IN that view of the matter this petition must be allowed by quashing the impugned order of the Tax Recovery Officer at Annexure B and by directing the Tax Recovery Officer to release the said amount of Rs. 59 904 also from attachment in connection with the aforesaid tax dues of the deceased defaulter assessee Jayantilal and restraining the respondent from recovering these dues from the aforesaid compensation amount of Rs. 59 904 which belongs to the petitioners. It is clarified that the Tax Recovery Officer shall be entitled to continue his proceeding of recovery from the remaining amount of Rs. 3000. 00 which was awarded by way of loss of estate to the petitioners as conventional amount of loss of expectation of life and that he is allowed to proceed even in respect of any further amount which may be awarded to the petitioners by way of loss to the estate in the pending appeals before this Court. Rule is accordingly made absolute with costs. .