IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. FAO NO.1266 of 2008 Date of Decision:25/2/2009 Smt.Sunno alias Sanno and others ..........Appellants. Versus Mujibur Rehman and others ..........Respondents CORAM: HON'BLE MR.JUSTICE JASWANT SINGH. Present: Mr. Rajesh Arora,Advocate for the appellants-claimants. Mr. D.P.Gupta,Advocate for the respondent no.3-Insurance Company. JASWANT SINGH,J The lone question that arises for consideration in this appeal is as to whether the amount of family pension being drawn by the appellants- dependents of deceased Gopi Chand, ( working as Sweeper with Haryana Roadways, Rewari Depot) who died in a motor vehicular accident on 28.5.2005, can be deducted/excluded from the income of the deceased. Though multiplier of 15 granted by the learned Motor Accident Claims Tribunal, was dubbed to be on lower side, however, at the time of arguments, the said issue was not pressed. Before, adverting to the question posed above, it is necessary to briefly notice the facts of the case in hand. Appellants-claimants being the widow and children of deceased Gopi Chand, filed Claim Petition no.120 of 13.10.2005 before the learned Motor Accidents Claims Tribunal, Gurgaon (hereinafter referred to as the FAO NO.1266 of 2008 2 Tribunal) seeking grant of Rs.20 lacs as compensation on account of death of said Gopi Chand, aged 33 years, in a motor vehicular accident that took place on 28.2.2005 at around 7.40 p.m. at Village Dhunela on Gurgaon Sohna Road, involving bus no.HR-55C-7319 (hereinafter referred to as the offending vehicle) driven by Mujibur Rehman-respondent no.1, owned by The Chhapera Coop.Transport Society Ltd.-respondent no.2 and insured by National Insurance Company-respondent no.3. According to the case of the claimants on the fateful day deceased Gopi Chand was about to board the offending vehicle to meet his uncle, who was already sitting in the offending vehicle. In the meantime, respondent no.1- driver, without taking proper care and caution started/ drove the bus at a fast speed, in which process the rear wheels of the offending bus ran over the deceased resulting into his death. Regarding the said accident, FIR No.364 under Sections 279/304-A IPC was registered in PS Sohna on the next date i.e. 26.8.2005. Upon notice, respondents 1 and 2 filed a joint written statement while respondent no. 3 filed separate written statement denying the averments contained in the claim petition. On the pleadings of the parties, issues were framed. Parties led oral as well as documentary evidence in support of their respective pleas. After hearing learned counsel for the parties and perusing the material on record, the learned Tribunal, vide impugned award dated 5.12.2007, partly allowed the claim petition with costs and awarded a total FAO NO.1266 of 2008 3 compensation of Rs.3,80,000/-, under various heads as detailed below:- S.No. Head Amount Rs.P. 1 Compensation on account of death of deceased 3,60,000-00 2 Loss of consortium 10,000-00 3 Funeral/last rites expenses 10,000-00 Total 3,80,000-00 All the respondents i.e. driver, owner and insurer of the offending vehicle were jointly and severally held liable to pay the aforesaid amount of compensation. Learned counsel for the appellants has contended that the learned Tribunal, while assessing the dependency of the claimants, has wrongly deducted the amount of family pension being drawn by the appellants. Reliance has been placed upon Lal Dei and others v. Himachal Road Transport Corporation and another, 2008 ACJ 1107. I have heard learned counsel for the parties and gone through the record. Appellant/claimant no.1 namely Sunno-widow of the deceased appeared as PW5 and stated that salary of her husband for the month of July 2005 (i.e. month preceding his death) was Rs.6227/-. In her cross examination she had admitted that she was in receipt of about Rs.3000/- as family pension. The learned Tribunal, while assessing the income of the deceased/ dependency of the appellants-claimants relied upon salary certificate (Exhibit P1) of the deceased for the month of July 2005 proved by one Narender Kumar (PW1) working as Clerk in the office of Haryana Roadways, Rewari FAO NO.1266 of 2008 4 Depot. As per said certificate the deceased, during the month of July 2005 had received salary amounting to Rs.5554/-. The learned Tribunal calculated the monthly income of the deceased as under:- S.No. Head Amount Rs.P. 1 Basic Pay 3080-00 2 Dearness Pay 1540-00 3 Special Pay 65-00 4 Dearness Allowance 970-00 Total Rs.5655-00 Less: Family Pension Rs.3000-00 Net Monthly Income Rs.2655-00 Keeping in view the large number of family members [i.e. widow, three daughters( two major & one minor) and two minor sons-total six] deducted 1/4th towards personal expenses assessed the annual dependency to be Rs.2400 and by applying multiplier of 15 the total dependency came to be Rs.3,60,000/-. As already stated above, besides that a sum of Rs.10,000/- each towards consortium and for funeral/rites was also awarded, thus totalling the compensation to be Rs.3,80,000/-. In Lal Dei's case (supra), their Lordships of the Hon'ble Supreme Court, while referring to Helen C.Rebello v. Maharashtra State Road Trans.Corpn.,1999 ACJ 10 (SC), held that family pension could not be deducted while calculating the dependency of the claimants. Relevant para 4 of the judgement reads as under:- “4. It is contended by learned counsel for the appellants that while calculating the dependency, FAO NO.1266 of 2008 5 the Motor Accident Claims Tribunal as well as the High court committed an error in deducting the family pension amount. We find that the submission made by the counsel for the appellants is correct. The Motor Accidents Claims Tribunal as well as the High Court could not have deducted the amount of family pension given to the family while calculating the dependency of the claimants. In Helen C. Rebello v. Maharashtra State Road Trans. Corpn., 1999 ACJ 10 (SC) this court has specifically dealt with this question and said that the family pension is earned by an employee for the benefit of his family in the form of his contribution in the service in terms of the service conditions receivable by the heirs after his death. The heirs receive family pension even otherwise than the accidental death. There is no co-relation between the two and, therefore, the family pension amount paid to the family cannot be deducted while calculating the compensation awarded to the claimants. In view of this, the appeal is allowed. The order of deduction of the family pension is set aside. Accordingly, the appellants would be FAO NO.1266 of 2008 6 entitled for an amount of Rs.10,27,000 as compensation with interest at the rate of 9 per cent from the date of the filing of the petition.” Learned counsel for the respondent no.3-Insurance Company contends that while assessing the dependency, the learned Tribunal has rightly deducted the amount of family pension being drawn by the appellants. Reliance has been placed upon Bhakra Beas Management Board v. Kanta Aggarwal and others, 2008 ACJ 2372 to contend that the law laid down in Helen C Rebello's case (supra), no more holds the field. By referring to Kanta Aggarwal's case (supra) learned counsel for the Insurer submits that benefits being received by the claimants on account of death have to be deducted while computing the compensation. In my considered opinion the law laid down by the Hon'ble Apex Court in Kanta Aggarwal's case (supra) is not applicable to the facts of the present case. In Kanta Aggarwal's case the widow had got appointment on compassionate grounds and had also been provided accommodation by the employer. Even otherwise, the principles of law laid down in Helen C.Rebello's case (supra) , though have been noticed, but not overruled. In the present case, except family pension and compensation it has not been proved or for that purpose even claimed by respondents that any of the appellants has been given compassionate appointment/accommodation. In view of the above, it cannot be said that the impugned award is on extremely high side or concept of just compensation has been lost sight of. FAO NO.1266 of 2008 7 Accordingly, the present appeal is allowed, the appellants- claimants are held entitled to deducted amount of family pension i.e. Rs.3000/- p.m. to be counted towards the dependency and the compensation amount now works out to Rs.2000+3000x12x15=9,00,000/-. Out of the said amount a sum of Rs.3,60,000/- being the compensation on account of vehicular death already stands granted by the learned Tribunal. Hence the claimants appellants would be entitled to enhanced compensation of Rs.5,40,000/- , which would carry an interest of 7½% from the date of filing of the claim petition till realisation of the amount. 25.2.2009. (Jaswant Singh) joshi Judge