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2018 DIGILAW 457 (ALL)

SUMAN v. HIMANSHU

2018-02-20

BALA KRISHNA NARAYANA, IRSHAD ALI

body2018
JUDGMENT Hon’ble Irshad Ail, J.—Heard Sri R.K. Porwal, learned counsel for the appellants and Mohd. A. Zulfikar on behalf of respondent No. 1, Smt. Pushpa Singh for respondent No. 3 and Sri Pranjal Mehrotra for respondent No. 4. 2. The present first appeal from order has been preferred by the appellants/claimants challenging the judgment and award dated 29.10.2012 passed by MACT/IVth ADJ, Etawah in MAC No. 456 of 2010 (Suman and other v. Himanshu and others). In claim petition No. 456 of 2010, the appellants claimed Rs. 8,50,000/- as compensation and the Tribunal has awarded Rs. 60,000/- as compensation alongwith 6% simple interest from the date of filing of claim petition. The appellants/claimants have filed this appeal for enhancement of compensation. 3. The brief facts of the case are that while the deceased Dharmendra was going on 30.4.2010 at 06.30 p.m. from Mehengaon, District Bhind, M.P. to Mehtauli by motorcycle bearing registration No. UP75K-3572 which was driven by one Manjesh Kumar and when they reached near Aam Road, P.S Mahangav at Village Soni, a motorcycle bearing registration No. UP71-8263 collided with the motorcyle of deceased Dharmendra from behind due to rash and negligent driving of its driver and sustained serious injuries and as a result of the injuries received by the deceased in the aforesaid accident, he died on the spot. In regard to the incident, an FIR was lodged at PS Mehengaon, District Bhind, M.P. 4. At the time of his death in the accident, the deceased Dharmendra was aged about 27 years and was working on the post of peon in Jansahyogi Balika Inter college, District Etawa and was receiving Rs. 8616/- as salary. 5. Motor Accident Claim Petition was filed by the claimants/respondents, his wife and his minor children claiming a sum of Rs. 8,53,000/- as compensation for the death of Dharmender. The clam petition was contested by the owner and driver of the vehicle as well as the insurance company. 6. The claim of the claimants/appellants was opposed mainly on the ground that after the death of deceased Dharmeder, his wife Smt. Suman had been granted appointment on compassionate ground in the same school and she was receiving Rs. 11,000/- as salary. 7. 6. The claim of the claimants/appellants was opposed mainly on the ground that after the death of deceased Dharmeder, his wife Smt. Suman had been granted appointment on compassionate ground in the same school and she was receiving Rs. 11,000/- as salary. 7. The Tribunal after considering the submissions advanced before it by the learned counsel for the parties and the evidence on record, disposed of the claim petition by the impugned judgment and award holding that the claimants/respondent No. 3 were not entitled to any compensation in view of the claimant/appellant No. 1 Smt. Suman Devi wife of the deceased Dharmender having been given appointment on compassionate grounds. The Tribunal, however, awarded a sum of Rs. 60,000/- as compensation according to the Schedule of Motor Vehicles Act and also two sums of Rs. 5000/- each under the conventional heads of funeral expenses and loss of consortium. 8. Learned counsel for the appellant submitted that the Tribunal committed a patent error of law in refusing to grant any compensation to the claimants/appellants on the ground of claimant/appellant No. 1 Smt. Suman having been granted compassionate appointment in the same school in which the deceased was working. 9. In support of his aforesaid submission, learned counsel for the appellants has placed reliance upon a judgment of the Hon’ble Apex Court rendered in the case of ‘Vimal Kanwar and others v. Kishore Dan and others’, 2013 (3) TAC 6 (SC) and submitted that in view of the law laid down by the Apex Court in the aforesaid case, the impugned order cannot be sustained and is liable to be set aside. 10. Learned counsel for the respondent made his submissions in support of the impugned judgment and award. 11. We have heard learned counsel for the parties and perused the material brought on record. 12. The facts of the case are not in dispute. The claim petition filed by the claimants/appellants for award of Rs. 8,50,000/- as compensation for the death of Dharmender, husband of claimant/appellant No. 1 and father of claimant/appellant Nos. 2 and 3 in a road accident which had taken place due to rash and negligent driving of the offending motorcycle has been rejected by the Tribunal on the solitary ground that the wife of the deceased has been awarded compassionate appointment and she was receiving a salary of Rs. 11,000/- per month. 2 and 3 in a road accident which had taken place due to rash and negligent driving of the offending motorcycle has been rejected by the Tribunal on the solitary ground that the wife of the deceased has been awarded compassionate appointment and she was receiving a salary of Rs. 11,000/- per month. While examining the identical issue, in paragraph 20 of the Apex Court in the case of Vimal Kumar (supra) has held as under: “20. The second issue is “whether the salary receivable by the claimant on compassionate appointment comes within the periphery of the Motor Vehicles Act to be termed as “Pecuniary Advantage” liable for deduction.” “Compassionate appointment” can be one of the conditions of service of an employee, if a scheme to that effect is framed by the employer. In case, the employee dies in harness i.e. while in service leaving behind the dependents, one of the dependents may request for compassionate appointment to maintain the family of the deceased employee dies in harness. This cannot be stated to be an advantage receivable by the heirs on account of one’s death and have no correlation with the amount receivable under a statute occasioned on account of accidental death. Compassionate appointment may have nexus with the death of an employee while in service but it is not necessary that it should have a correlation with the accidental death. An employee dies in harness even in normal course, due to illness and to maintain the family of the deceased one of the dependents may be entitled for compassionate appointment but that cannot be termed as “Pecuniary Advantage” that comes under the periphery of Motor Vehicles Act and any amount received on such appointment is not liable for deduction for determination of compensation under the Motor Vehicles Act” Thus, in view of the principles propounded by the Apex Court in the case of ‘Vimal Kumar’ (supra), we find that the Tribunal was not at all justified in rejecting the claim petition filed by the claimants/respondents on the ground that the salary received by the claimant/appellant No. 1 on her compassionate appointment comes within the periphery of Motor Vehicles Act and to be termed as ‘pecuniary advantage’ liable for deduction. Thus, in view of the foregoing discussions, we are of the considered view that this appeal deserves to be allowed. Thus, in view of the foregoing discussions, we are of the considered view that this appeal deserves to be allowed. For the aforesaid reasons, we are inclined to allow this appeal. The appeal is accordingly allowed. The impugned judgment and award dated 29.10.2012 passed by MACT/IVth ADJ, Etawah in MAC No. 456 of 2010 (Suman and other v. Himanshu and others) is hereby set aside to the extent indicated hereinabove. 13. The matter is remitted back to the MACT/IVth ADJ, Etawah with the direction to decide the claim petition on merits on the basis of the evidence already on record. The necessary exercise in this regard shall be completed by the Tribunal within a period of three months from the date of production of certified copy of this order without granting any undue adjournments to the parties.