IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. FAO 848/2009(O&M) Date of Decision:18.3.2009. Bajaj Allianz ..........Appellant Versus Usha Sharma and others. ..........Respondents CORAM: HON'BLE MR.JUSTICE JASWANT SINGH. Present: Mr. RK Aggarwal,Advocate for the appellant-Insurance Company JASWANT SINGH,J. CM No.3438-CII/2009. For the reasons stated in the application, the same is allowed and delay of 8 days in filing the appeal is condoned. FAO NO.848/2009. By way of present appeal, Insurance Company has laid challenge to the award dated 22.10.2008 passed by the learned Motor Accident Claims Tribunal, Panchkula (hereinafter referred to as the Tribunal) whereby claim petition filed by respondents 1 and 2-claimants (widow and daughter) under Section 166 of the Motor Vehicles Act,1988 (for short the Act) was partly allowed and they were awarded total compensation of Rs.6,07,000/-, with interest @ 6% p.a. from the date of filing of the claim petition, on account of death of Lal Chand Rai Sharma, resulting from a motor vehicular accident that took place on 23.8.2007 at about 10.30 a.m., involving the Bajaj Motor Cycle bearing registration No. HR-03-H-8365 (hereinafter referred to as the FAO 848/2009(O&M) 2 offending vehicle) insured by the appellant-Insurance Company. So far as the factum of accident, insurance of the vehicle, driver holding a valid and effective driving licence at the relevant time, and death of deceasd Lal Chand Rai Sharma, as a result of the accident, have not been disputed. I have heard learned counsel for the appellant and perused the impugned award. It is contended by the learned counsel for the appellant that it is a case of contributory negligence and as such the compensation should have been awarded accordingly. It is further contended by the learned counsel that as per deposition of the widow of the deceased she was getting a family pension of Rs.7000/- per month, but the said amount has not been deducted/excluded while assessing the compensation payable to the claimants. I am of the considered opinion that the contentions raised by the learned counsel, on the face of findings, based on oral and documentary evidence,recorded in the impugned award, deserve outright rejection. The learned Tribunal, on the basis of pleadings of the parties framed various issues. Issue no.1, related to the determination of negligence. To prove their case claimant-widow namely PW1 Usha Sharma exhibited copy of FIR and Post Mortem Report as Exhibits P1 and P2 respectively, though she admitted not to have witnessed the accident. Besides that she also examined one Varinder Rai, as PW2, who deposed that the FAO 848/2009(O&M) 3 accident had taken place due to sole, rash and negligent driving of the offending vehicle by respondent no.3-Om Kumar when it hit the front wheel of the scooter being driven by the deceased at the crossing of Sectors 11,14 and 15. Neither the owner nor the driver of the offending vehicle stepped into witness box to utter a single word about the negligence part, which is now being pressed in the present appeal by the appellant-Insurance Company. The learned Tribunal, in para 11 of the impugned award, has categorically observed that even the appellant did not sought permission to produce evidence on the negligence aspect of the case and as such the evidence led by the claimants on this issue has gone unrebutted. In the face of unrebutted evidence led by the claimants, no fault can be found with the impugned award, so far as the first contention raised by the learned counsel for the appellant regarding contributory negligence is concerned. Regarding deduction of family pension at the time of assessment of total dependency of the claimants, a Full Bench of this Court in Bhagat Singh Sohan Singh v. Om Sharma and others 1983 PLR 1, followed by a Division Bench of this Court in FAO No.1762/1993 (Anguri Devi and others v. State of Haryana and others, decided on 6.9.1994) held that the amount of family pension could not have been deducted from the compensation. Learned counsel for the appellant-Insurance Company has not been able to cite any legal provision, which excludes consideration of family pension amount at the FAO 848/2009(O&M) 4 time of assessing dependency in a petition under Section 166 of the Motor Vehicles Act. Thus, the second contention raised by the learned counsel also stands rejected. No other point has been raised. For the reasons stated above,finding no merit in this appeal the same is hereby dismissed in limine. Registry is directed to remit the statutory amount of Rs.25,000/- to the learned Executing Court, for disbursement to the claimants. 18.3.2009. (Jaswant Singh) joshi Judge