JUDGMENT 1. - Heard learned Counsel for the parties. 2. This is a Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 for enhancement of the compensation awarded by the Motor Accident Claims Tribunal (Special Judge, Decoity Affected Area), Bharatpur (hereinafter to be referred as 'Tribunal') in MAC No. 97/2002; Munni Devi & Ors. v. Govind Rajput & anr. , whereby the claim filed by the claimant-appellants has been partly allowed to the extent of Rs. 8,03,220. 3. Briefly stated, the facts of the case are that the Thakur Dass Saini went to Ranjeet Nagar on 13.1.2002. When he was returning back by the Tempo No. RJ-05-P-0745 at 8.30 p.m., the accident was occurred with a jeep due to rash and negligent driving by the driver of the Tempo and Jeep, and Thakur Dass Saini sustained serious injuries in his body as a result of which, he was admitted in the General Hospital, Bharatpur, where he died. 4. The claimant-appellants filed a claim petition before the Motor Accident Claims Tribunal, Bharatpur for the alleged loss sustained by them due to death of Thakur Dass Saini. It was further alleged by the claimant-appellants that at the time of accident, the deceased Thakur Dass Saini's age was 52 years and he was working as Male Nurse in Government Zanana Hospital, Bharatpur. His salary was Rs. 15,000 per month. The claimant-appellants were dependent on the deceased and they claimed for compensation to the time of Rs. 19,01,000. The said Tempo was belonging to the respondent No. 1 - Govind Rajput and respondent No. 2 - New India Insurance Company Limited is the insurer of the said Tempo. 5. The respondent No. 1 - Govind Rajput filed his reply before the Motor Accident Claims Tribunal, Bharatpur and denied all the averments of the claim petition filed by the claimant-appellants. The respondent No. 2 - Insurance Company has also filed its reply before the Motor Accident Claims Tribunal and denied all the averments made in the claim petition and further alleged that the Insurer is not liable to pay compensation, because the owner of the Tempo has violated the terms and conditions of the Insurance Policy. 6. On the basis of the pleadings of the parties, the learned Tribunal framed as many as 5 issues which are as follows: "(Hindi matter omitted)" 7. 6. On the basis of the pleadings of the parties, the learned Tribunal framed as many as 5 issues which are as follows: "(Hindi matter omitted)" 7. On behalf of the claimant-appellants AW-1 Munni Devi, AW-2 Rajendra Kumar and AW-3 Birjesh Kumar were examined and in documentary evidence Exs. 1 to 12 were also produced. On behalf of the respondents NAW-1 Dharmendra Sharma and NAW-2 Devi Dayal were examined and in documentary evidence Ex. A/1 Insurance Policy and Ex. A/2 Driving Licence were produced. 8. After hearing both the parties, the Tribunal decided issue Nos. 1, 3 and 4 in favour of the claimant-appellants and issue Nos. 2 and 5 regarding the amount of claim have been partly accepted and passed an award for Rs. 8,03,290 vide its Judgment dated 30.9.2004 in favour of the claimant-appellants and against the respondents. The Tribunal determined the age of the deceased-Thakur Dass Saini as 52 years, monthly salary as Rs. 13,855 (Ex. 2) and applied the multiplier of 11 to calculate the compensation and after taking salary of the deceased for the remaining period of 6 years, calculated the amount of Rs. 9,97,560 as loss of salary and further assessed the amount of Rs. 1,93,020 as family pension for remaining 5 years and after deducting 1/3 amount, awarded compensation amounting to Rs. 6,65,040 + 1,28,680 = 7,93,720. While determining the loss of income to the deceased family, the Tribunal deducted 1/3 amount on account of personal expenses of the deceased i.e. Rs. 9,97,560 + 1,93,020 = 11,90,580 and awarded a compensation of Rs. 7,93,720. In addition to that, learned Tribunal has awarded Rs. 2,000 as funeral expenses, loss of love, affection and consortium as Rs. 5,000, loss of estate as Rs. 2,500. Therefore, in all Rs. 8,03,220 has been awarded to the claimant-appellants as compensation and the Tribunal vide its judgment dated 30.9.2004 allowed the claim partly. 9. Hence, being aggrieved with the judgment of the Tribunal dated 30.9.2004, the claimant-appellants have filed the instant appeal for enhancement of compensation. 10. Submission of the learned Counsel for the claimant-appellants is that the deduction of the family pension while calculating the amount of award is contrary to the well established principles of law for determination of compensation under the Motor Vehicles Act, 1988. 10. Submission of the learned Counsel for the claimant-appellants is that the deduction of the family pension while calculating the amount of award is contrary to the well established principles of law for determination of compensation under the Motor Vehicles Act, 1988. In support of the aforesaid submissions, the learned Counsel for the claimant-appellants has placed reliance on Paras No. 34,35,36 and 37 of a judgment reported in 11 (1998) ACC 512 (SC) = IV (1998) CLT 129 (SC) = 1999 ACJ 10 titled as Helen C. Rebello and Others v. Maharashtra State Road Transport Corporation and Another , passed on 18.9.1998 wherein after detailed discussion for deduction of LIC amount, family pension while determining the compensation under Motor Vehicles Act, 1988. It has been held in para 37 that the same is not a 'pecuniary advantage' under the Motor Vehicles Act so far and benefit accrued to the family of the deceased on account of the death under Motor Vehicles Act or otherwise are payable to the family members as per provisions of different statute. Learned Counsel for the claimant-appellants has placed reliance on para No. 8 of the judgment reported in 2001 ACJ 1965 titled as Saroja & Ors. v. Mahalingappa and Another , wherein the judgment passed in Helan C. Robello's case (cited supra) has followed, therefore, the amount of compensation deserves to be enhanced. 11. Per contra, learned Counsel for the respondents has placed reliance on a judgment reported in IV (2008) ACC 764 (SC)=2008 (2) WLC (SC) Civil 498 titled as Bhakra Beas Management Board v. Kanta Aggarwal & Ors. , and submitted that while determining the compensation, one of the principles of assessment is that on employment on compassionate ground, the salary of the widow will be taken into consideration and the same will be reduced from the total compensation after applying the same multiplied, therefore, the amount of compensation calculated by the Tribunal is just and proper. 12. I have gone through the record of the Miscellaneous Appeal and further perused the record of the Tribunal along with the rival submissions and citations raised/cited by the parties. 13. A bare perusal of the award would reveal that the Tribunal determined the age of the deceased as 52 years, monthly income as Rs. 13,855 (Ex. 12. I have gone through the record of the Miscellaneous Appeal and further perused the record of the Tribunal along with the rival submissions and citations raised/cited by the parties. 13. A bare perusal of the award would reveal that the Tribunal determined the age of the deceased as 52 years, monthly income as Rs. 13,855 (Ex. 2) and further took into consideration the multiplier of 11 and while calculating the loss of dependency, at one stage, the Tribunal after taking into consideration the retirement age of 58 years held that deceased would have worked for the period of 6 years but subsequently he has taken into consideration the 5 years period of service for and bifurcating the multiplier of 11 in 6 and 5 years respectively and further deducting the pension for remaining 5 years. 14. The total amount first arrived at by the Tribunal as under: 13855 x 12 x 6 = Rs. 9,97,650 and further calculated the 5 years service of family pension after minus from the salary i.e. 3217 x 12 x 5 = 1,93,020 and after adding both the aforesaid amounts, the Tribunal has deducted ⅓rd amount for personal expenses of the deceased and awarded compensation to the tune of Rs. 6,65,040 + 1,28,680 totaling to Rs. 7,93,720 to the claimant-appellants. In addition to that, the undisputed amount is Rs. 2,000 for funeral, loss of love, affection and consortium as Rs. 5,000 and loss of estate as Rs. 2,500 totaling to Rs. 9,500 and in all Rs. 8,03,220 has been awarded to the claimant-appellants as compensation. 15. Before proceeding further it would be appropriate to refer the judgments cited by Counsel for both the parties. Judgments cited by the Counsel for the appellants: (a) 1999 ACJ 10, Helen C. Rebello and Others v. Maharashtra State Road Transport Corporation and Another , decided on 18.9.1998. The relevant para Nos. 34, 35, 36 and 37 are as follows- "(34) So far as the general principle of estimating damages under the common law is concerned, it is settled that the pecuniary loss can be ascertained only by balancing on one hand, the loss to the claimant of the future pecuniary benefits that would have accrued to him but for the death with the 'pecuniary advantage' which from whatever source comes to him by reason of the death. In other words, it is the balancing of loss and gain of the claimant occasioned by the death. But this has to change its colour to the extent a statute intends to do. Thus, this has to be interpreted in the light of the provisions of the Motor Vehicles Act, 1939. It is very clear, to which there could be no doubt that this Act delivers compensation to the claimant only on account of accidental injury or death, not on account of any other death. Thus, the pecuniary advantage accruing under this Act has to be deciphered, co-relating with the accidental death. The compensation payable under the Motor Vehicles Act is on account of the pecuniary loss to the claimant by accidental injury or death and not other forms of death. If there is natural death or death by suicide, serious illness, including even death by accident, through train, air flight, not involving motor vehicle, would not be covered under the Motor Vehicles Act. Thus, the application of general principle under the common law of loss and gain for the computation of compensation under this Act must co-relate to this type of injury or deaths, viz. accidental. If the words 'pecuniary advantage' from whatever source are to be interpreted to mean any form of death under this Act it would dilute all possible benefits conferred on the claimant and would be contrary of the spirit of the law. If the 'pecuniary advantage' resulting from death means pecuniary advantage coming under all forms of death then it will include all the assets movable, immovable, shares, bank accounts, case and every amount receivable under any contract. In other words, all heritable assets including what is willed by the deceased, etc. This would obliterate both, all possible conferment of economic security to the claimant by the deceased and the intentions of the Legislature. By such an interpretation the tortfeasor in spite of his wrongful act or negligence, which contributes to the death, would have in many cases no liability or meagre liability. In our considered opinion, the general principle of loss and gain takes colour of this statute, viz., the gain has to be interpreted which is as a result of the accidental death and the loss on account of the accident death. In our considered opinion, the general principle of loss and gain takes colour of this statute, viz., the gain has to be interpreted which is as a result of the accidental death and the loss on account of the accident death. Thus, under the present Act whatever pecuniary advantage is received by the claimant/from whatever source, would only mean which comes to the claimant on account of the accidental death and not other form of death. The constitution of the Motor Accident Claims Tribunal itself under Section 110 is, as the section states- for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to,....' (35) Thus, it would not include that which claimant receives on a count other form of deaths, which he would have received even apart from accidental death. Thus, such pecuniary advantage would have no correlation to the accidental death for which compensation is computed. Any amount received or receivable not only on account of the accidental death but that would have come to the claimant even otherwise, could not be construed to be the 'pecuniary advantage', liable for deduction. However, where the employer insures his employee, as against injury or death arising out of an accident, any amount received out of such insurance on the happening of such incidence may be an amount liable for deduction. However, where the employer insures his employee, as against injury or death arising out of an accident, any amount received out of such insurance on the happening of such incidence may be an amount liable for deduction. However, our Legislature has taken not of such contingency, through the proviso of Section 95. Under it the liability of the insurer is excluded in respect of injury or death, arising out of, in the course of employment of an employee. (36) This is based on the principle that the claimant for the happening of the same incidence may not gain twice from two sources. This, it is excluded thus, either through the wisdom of Legislature or through the principle of loss and gain through deduction not to give gain to the claimant twice arising from the same transaction, viz., same accident. This, it is excluded thus, either through the wisdom of Legislature or through the principle of loss and gain through deduction not to give gain to the claimant twice arising from the same transaction, viz., same accident. It is significant to record here in both the sources, viz., either under the Motor Vehicles Act or from the employer, the compensation receivable by the claimant is either statutory or through the security of the employer securing for his employee but in both cases he receives the amount without his contribution. How thus an amount earned out of one's labour or contribution towards one's wealth, savings, etc. either for himself or for his family, which such person knows, under the law, has to go to his heirs after his death either by succession or under a Will could be said to be the 'pecuniary gain' only on account of one's accidental death. This, of course, is pecuniary gain but how this is equitable or could be balanced out of the amount to be received as compensation under the Motor Vehicles Act. There is no co-relation between the two amounts. Not even remotely. How can an amount of loss and gain of one contract could be made applicable to the loss and gain of another contract. Similarly, how an amount receivable under a statute has any co-relation with an amount earned by an individual. Principle of loss and gain has to be on the same place within the same sphere, of course, subject to the contract to the contrary or any provisions of law. (37) Broadly, we may examine the receipt of the provident fund which is a deferred payment out of the contribution made by an employee during the tenure of his service. Such employee or his heirs are entitled to receive this amount irrespective of the certain to be received, while the amount under the Motor Vehicles Act is uncertain and is receivable only on the happening of the event viz., accident which may not take place at all. Similarly, family pension is also 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. No co-relation between the two. Similarly, family pension is also 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. No co-relation between the two. Similarly, life insurance policy is received either by the insured or the heirs of the insured on account of the contract with the insurer, for which insured contributes in the form of premium. It is receivable even by the insured, if he lived till maturity after paying all the premiums, in the case of death insurer indemnified to pay the sum to the heirs, again in terms of the contracts for the premium paid. Again this amount is receivable by the claimant not on account of any accidental death but otherwise on insured's death. Death is only a step or contingency in terms of the contract, to receive the amount. Similarly any case, bank balance, shares, fixed deposits, etc. though are all a pecuniary advantage receivable by the heirs on account of one's death but all these have no co-relation with the amount receivable under a statute occasioned only on account of accidental death. How could such an amount come within the periphery of the Motor Vehicles Act to be termed as 'pecuniary advantage' liable for deduction. When we seek the principle of loss and gain, it has to be on similar and same plane having nexus inter so between them and corelation. The insured (deceased) contributes his own money for which he receives the amount has no co-relation to the compensation computed as against tortfeasor for his negligence on account of accident. As aforesaid, the amount receivable as compensation under the Act is on account of the injury of death without making any contribution towards it then how can fruits of an amount received through contributions of the insured be deducted out of the amount receivable under the Motor Vehicles Act. The amount under this Act, he receives without any contribution. As we have said the compensation payable under the Motor Vehicles Act is statutory while the amount received under the life insurance policy is contractual." (Emphasis supplied) (b) 2001 ACJ 1965 , Saroja & Ors. v. Mahalingappa & Anr. , (Karnataka High Court) decided on 25.7.2000. The relevant para No. 8 is as below- "8. As we have said the compensation payable under the Motor Vehicles Act is statutory while the amount received under the life insurance policy is contractual." (Emphasis supplied) (b) 2001 ACJ 1965 , Saroja & Ors. v. Mahalingappa & Anr. , (Karnataka High Court) decided on 25.7.2000. The relevant para No. 8 is as below- "8. The verdict and law laid down by the Supreme Court in Helen C. Rebello's case as referred to above in extenso is very clear that the family pension is also earned by the employee for the benefit of the family in the form of his contribution in the service in terms of service conditions receivable by his heirs after his death. The heirs receive the family pension even otherwise than the accidental death and no co-relation exist between the two amounts receivable as family pension payable on death of employee to his heirs and the amount receivable, under a statute; only on account of accidental death. That as such amount receivable as family pension cannot be termed as a pecuniary advantage under the Motor Vehicles Act, liable for deduction and as such family pension is not deductible from the compensation amount assessed." (Emphasis supplied) Judgment cited by the Counsel for the respondents: (a) 2008 ACJ 2372 , Bhakra Beas Management Board v. Kanta Aggarwal & Ors. , decided on 7.7.2008. Relevant para Nos. 12 and 13 are as follows: "(12) But we find that the High Court lost sight of the fact that the benefits which the claimant receives on account of the death or injury have to be duly considered while fixing the compensation. It is pointed out that respondent No. 1 was getting Rs. 4,700 p.m. and a residence has been provided to her and actually the compassionate appointment was given immediately after the accident. (13) In view of what has been stated above, the High Court's judgment is clearly unsustainable. However, the accident took place more than 14 years back and it would not be desirable to send the matter back to the Tribunal for fresh consideration. A sum of rupees five lakh has been deposited vide this Court's order dated 1.11.2004. (13) In view of what has been stated above, the High Court's judgment is clearly unsustainable. However, the accident took place more than 14 years back and it would not be desirable to send the matter back to the Tribunal for fresh consideration. A sum of rupees five lakh has been deposited vide this Court's order dated 1.11.2004. We are of the considered view that in view of the back ground facts, it is just and proper that the sum of Rupees five lakh already deposited shall be permitted to be withdrawn by the claimants in full and final settlement of the claim relatable to the death of the deceased. It is for the Tribunal to fix the quantum of fixed deposit and the amount to be released to the claimants." (Emphasis supplied) 16. On consideration of the aforesaid judgments cited by Counsel for both the parties along with the award and submissions made by them, it is shocking that the Tribunal has deducted ⅓rd personal expenses of the deceased even from family pension which is not to be excluded from the salary of the deceased while calculating the compensation on the basis of the multiplier, as detailed out herein above. The case is not of a pension to the injured but same is of family pension payable to the legal representatives of the deceased. In case of compensation to the family of the legal representatives of the deceased, his income at the time of accident is to be considered and all other factors like pension/family pension have already been taken into consideration while fixing the multiplier on the particular age as fixing of the multiplier 11 on the age of 52 years, I am of the view that compassionate appointment is directly related to the death of the employee either in motor accident or otherwise but the same is not possible had the deceased been alive. The pension is not a bounty but the same is the fruit of the services rendered by an employee during the period of service and said principle is also applicable to the family members of the deceased employee. The pension is not a bounty but the same is the fruit of the services rendered by an employee during the period of service and said principle is also applicable to the family members of the deceased employee. The pension is also payable to a Government employee after attaining the superannuation age during his lifetime but one of the family members of the deceased is not entitled for compassionate appointment during his lifetime but the family pension is payable to the members of the family either of the death of an employee in normal course and in case of motor accident, compensation granted to the members of the deceased family in motor accident but the same is not related at all under the Motor Vehicles Act, 1988. Therefore, judgment of the Supreme Court cited by the respondents in Bhakra Beas Management Board (supra), is not applicable in the facts and circumstances of this case and the judgment of the Supreme Court cited by the claimant-appellants in Helen C. Rebello & Ors. and Saroja & Ors. of the Karnataka High Court (cited supra), are applicable. 17. In view of the aforesaid discussion, as per the law laid down by the Supreme Court in Helen C. Rebello & Ors. and Karnataka High Court in Saroja & Ors., the final determination of the compensation is as under: 1. Age of the deceased - 52 years 2. Monthly income of the deceased at the time of accident - Rs. 13,855 3. Multiplier applied - 11 4. 1/3 deduction of the monthly salary at the time of accident of Thakur Dass Saini - 13855 - 4618 = 9,237 5. Compensation - 9,237 x 12 x 11 = 12,19,284 6. Funeral - Rs. 2,000 7. Loss of love, affection and consortium - Rs. 5,000 8. Loss of estate - Rs. 2,500 9. Total amount of compensation - Rs. 12,28,784 18. Therefore, the amount awarded by the Tribunal i.e. Rs. 8,03,220 is enhanced to Rs. 12,28,784 and the claimant-appellants are entitled for enhanced amount i.e. Rs. 4,25,564 also with 6% interest from the date of filling of the petition i.e. 2.4.2002. 19. The Miscellaneous appeal is partly allowed, the compensation of Rs. 8,03,220 awarded by the Tribunal is enhanced to Rs. 12,28,784 and the enhanced amount of compensation i.e. Rs. 4,25,564 with interest. 6% per annum shall be paid to the claimants.Appeal partly allowed. *******