IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTYFOURTH DAY OF AUGUST TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD C.M.A.No.2365 of 2001 Between: Nagelli Anjamma and others ..Appellants AND Tangutoori Venkati and others .. Respondents JUDGMENT: This appeal is directed against the award in O.P.No.639 of 1996 on the file of the Motor Accidents Claims Tribunal-cum- Additional District Judge, Khammam, dated 24-11-2000. The factual background for the appeal is that Nagelli Swamy, husband of the 1st claimant and father of claimants 2 to 4, was on duty at the godowns of the Food Corporation of India on 16-5-1996 and when he was going on his TVS Champ No.AP-20- 3089, lorry No.ATS-735 came opposite near the railway track being driven rashly and negligently in high speed. The lorry dashed against the TVS champ and Swamy was thrown out from the moped sustaining grievous injuries on the vital parts of the body. He was shifted to a private Nursing Home and expired on the next morning while undergoing treatment. Crime No.75 of 1996 under Section 304 A IPC was registered by III Town Police, Khammam, and the 39 year old deceased was hale and healthy and was getting a monthly pay of Rs.4,824/-. The wife and children lost their dependency and claimed a total compensation of Rs.7,00,000/- from the driver, owner and insurer of the lorry. While the driver and owner of the lorry remained ex parte before the Tribunal, the insurer contested the claim contending that the driver had no valid driving licence, the lorry was not roadworthy and the owner had no insurable interest in the vehicle by the time of accident. The other allegations of the claimants were denied and the claim was stated to be excessive. The Tribunal framed appropriate issues on the responsibility for the accident and the entitlement of the claimants to the compensation. During enquiry, PWs.1 and 2 were examined and Exs.A.1 to A.6 and B.1 were marked. The Tribunal rendered the impugned award firstly concluding on the basis of Ex.A.1-First Information Report and Ex.A.2-charge sheet corroborated by the eye witness account of PW.2 that the accident occurred only due to the rash and negligent driving of the lorry by the 1st respondent. While assessing the compensation, the Tribunal took into account the average age of the deceased as 36 years as per Ex.A.4-Post Mortem Certificate etc., his salary of Rs.5,000/- per month as per Ex.A.5-Salary Certificate and still decided to deduct Rs.2,00,000/- stated by the wife, PW.1 to have been received by them towards the death benefits of the deceased. The Tribunal also decided to consider the wife receiving Rs.1,00,000/- from the Insurance Company under a group insurance policy, the compassionate appointment given to the wife earning Rs.3,000/- per month and the elder son running an auto rickshaw for livelihood. The Tribunal, therefore, decided to deduct 1/3rd towards personal expenses of the deceased had he been alive and applied a multiplier of 14.28 referable to his age and arrived at a compensation of Rs.5,79,420/- towards loss of dependency. The Tribunal also decided to award Rs.20,000/- towards loss of consortium to the wife, but deducted Rs.2,00,000/- received towards death benefits under Workmen’s Compensation Act and awarded a sum of Rs.4,00,000/- with interest at 12% p.a. and proportionate costs, while giving further directions about the apportionment of the amounts equally between the claimants and disbursement of the same. The claimants were basically aggrieved against the award due to the deduction of Rs.2,00,000/- received towards death benefits and contended that they are in fact entitled to more than Rs.7,00,000/- towards compensation. Smt. N. Surekha, learned counsel, representing Sri Ch. Ramesh Babu, learned counsel for the appellants is heard. None appeared for any of the respondents since a number of dates of hearing, though an advocate filed vakalat on behalf of the 2nd respondent/owner of the lorry. As the opportunities given by this Court by adjourning the matter thrice were not availed of by any of the respondents, the matter is being disposed of on merits. The only question involved in this appeal is whether the deduction of Rs.2,00,000/- from the compensation calculated is permissible in law? Insofar as the truth of the accident, the responsibility for the accident with the 1st respondent-driver of the lorry, the subsisting insurance of the vehicle owned by the 2nd respondent with the 3rd respondent, the death of Nagelli Swamy in the accident, the relationship of the claimants with the deceased, the age and employment of the deceased, the monthly salary of the deceased and the receipt of retiral/death benefits by the wife and children on the death of Swamy are concerned, there was factually no dispute even before the Tribunal and though the Tribunal awarded only loss of dependency and loss of consortium as parts of the compensation arrived at by it, there was no specific claim or reference by the claimants in the appeal to any other heads of pecuniary or non-pecuniary damages to which they are entitled on the death of Swamy. The consideration herein is, therefore, confined to the admission of PW.1 about receiving about Rs.2,00,000/- from the employer of her deceased husband towards the retiral benefits, apart from Rs.1,00,000/- from the Insurance Company under a group insurance policy and her being appointed on compassionate grounds as a sweeper with a monthly pay of Rs.3,000/-. While the Tribunal did not take into account either the insurance policy or the compassionate appointment in calculating the compensation, it thought it fit to deduct the retiral/death benefits paid to PW.1 and her children from the compensation arrived at for which it attributed no reasons. Smt. N. Surekha, learned counsel, rightly referred to the decision reported in Gulsharan Kaur v. Surinder Singh[1], which decision was rendered following the binding precedents from the Apex Court in Hardeo Kaur and others v. Rajasthan State Road Transport Corporation and another (1992 ACJ 300) and Urmilla Pandey and others v. Khalil Ahmad and others (1994 ACJ 805). The principle is that any deductions for lump sum payment in respect of Provident Fund, Gratuity, Insurance etc., can never be made by the Tribunal. Without replicating the precedents on the aspect, it can be safely inferred that it is settled that such retiral/death benefits cannot be deducted from the compensation to be awarded under the Motor Vehicles Act, as such death/retiral benefits were earned by the employee by his long service with his employer and not as a consequence of the accident. The victim’s life being nipped in the bud has to be adequately compensated irrespective of such death or retiral benefits and deduction of Rs.2,00,000/- by the Tribunal in the impugned award is, therefore, illegal. Accordingly, the compensation has to be enhanced by Rs.2,00,000/- and keeping the distance of time for which the interest has to be paid by the respondents on the enhanced portion of the compensation from 1996 till the date of payment or deposit, such interest can be restricted to 6% p.a. and proportionate costs, of course, shall follow suit in enhancing the compensation. Therefore, the award dated 24-11-2000 in O.P.No.639 of 1996 on the file of the Motor Accidents Claims Tribunal-cum- Additional District Judge, Khammam, is modified by enhancing the compensation by another Rs.2,00,000/- with interest thereon at 6% p.a. from the date of petition till the date of realization and proportionate costs and the enhanced portion of the compensation also shall be shared between the claimants equally and no further directions need be given at this distance of time regarding disbursement of the compensation. The appeal is allowed accordingly in part. No costs. _____________________ G. BHAVANI PRASAD, J Date: 24-08-2010 Ksn [1] 1995 (TLS) 120524