JUDGMENT : SUBHASH CHAND, J. 1. The instant Miscellaneous Appeal has been preferred against the award dated 30.04.2022 passed by the learned Principal District Judge-cum- Motor Accident Claims Tribunal, Dhanbad in Motor Accident Claim Case No.261 of 2018, whereby the learned Tribunal has directed the appellant- Insurance Company to pay Rs.89,05,359/- to the claimants with simple interest @ 7.5% from the date of filing of claim petition till its realization within 30 days from the date of receipt of the judgment. It is further directed that the aforesaid amount shall be disbursed in equal proportion among the plaintiff Nos.1, 2, 4 and 5 and the share or plaintiff Nos.4 and 5 shall be kept in the form of FDR till the date of their attaining majority. 2. Learned counsel for the appellant-Insurance Company has assailed the impugned award on two grounds. Firstly, the learned Tribunal has not framed the issue in regard to having the valid and effective driving license by the driver of offending vehicle at the time of accident and the same being fundamental breach of the Insurance Policy, as such, no liability can be fastened to the appellant-Insurance Company. Secondly, the quantum of compensation has been assailed on the ground that the son of deceased had got compassionate appointment, therefore, he is not entitled to the amount of compensation after death of his father as it will amount double benefit to him. 3. The factual matrix of the claim petition are that on 18.06.2018 at 09:40 pm, the deceased Ashok Modi was walking on footpath way of Rajdhanwar Sariya Road near Shiv Parvati Vastralay and Bajaj Show Room at Simradhab, P.S. Birni, District Giridih. The driver of Bajaj Pulsar motorcycle bearing registration No.JH-11M-0390 came driving the motorcycle rashly and negligently and dashed to the deceased, as a result of which, Ashok Modi received multiple and grievous injuries and admitted for treatment to Community Health Centre, Birni, from there, he was referred to RIMS, Ranchi. On the way to RIMS, Ranchi, he died on 19.06.2018 at about 01:30 am. The deceased was 48 years old and was a Government Assistant Teacher in Utkramit Middle School at Markodih, P.S. Birni, District Giridih. His yearly income was Rs.8,24,494/- and was income tax payee. On the way to RIMS, Ranchi, he died on 19.06.2018 at about 01:30 am. The deceased was 48 years old and was a Government Assistant Teacher in Utkramit Middle School at Markodih, P.S. Birni, District Giridih. His yearly income was Rs.8,24,494/- and was income tax payee. The FIR of the very accident was lodged with the police station, Birni, which was registered as Birni P.S. Case No.83 of 2018 under Sections 279, 337, 338 and 304-A of the Indian Penal Code on 19.06.2018. 3.1 The owner of Bajaj Pulsar Motorcycle bearing registration No.JH-11M-0390 is Laxman Nayak, S/o Viltu Nayak, R/o Bagodih, P.S. Suriya, Giridih and the driver of the said Motorcycle was Gulsan Kumar Saw, S/o Laxman Saw. The offending vehicle was insured by the New India Assurance Company Limited bearing policy No.54070231170200003762 valid from 09.02.2018 to 08.02.2019. After his death, he left his 1 st widow Urmila Devi, son Prashant Kumar and 2 nd widow Rina Devi, daughter Anshu Kumari (minor) and son Aman Kumar (minor. 4. On behalf of the opposite party No.1 Laxman Nayak, who is the owner of the offending vehicle, no written statement was filed. 5. On behalf of the opposite party No.2 The New India Assurance Company Limited written statement was filed, in which, the averments made in the claim petition were denied and it was emphasized that the offending vehicle, which was insured by the opposite party No.2- The New India Assurance Company Limited was not driven with a valid and effective driving license. The FIR of the incident was also lodged against Laxman Nayak and the charge-sheet was also filed against Laxman Nayak but the driving license was filed on behalf of Gulsan Kumar, son of Laxman Nayak and nothing on record that at the time of accident, the offending vehicle was being driven by Gulsan Kumar, son of Laxman Nayak. 6. Against the defendant No.1, namely, Laxman Nayak the claim petition was proceeded ex-parte. 7. The learned Tribunal on basis of the pleadings of the parties, framed four issues, which reads as under: “(I) Whether Ashok Modi (48 years) had died on 18.06.2018 due to rash and negligent driving of Bajaj Pulsar bearing No.JH-11M 0390? (II) Whether the offending bike bearing No.JH-11M-0390 was at the relevant time of occurrence on 18.06.2018 validly insured with the opposite party No.2? (III) Whether there was any contributory negligence on the part of the deceased? (II) Whether the offending bike bearing No.JH-11M-0390 was at the relevant time of occurrence on 18.06.2018 validly insured with the opposite party No.2? (III) Whether there was any contributory negligence on the part of the deceased? (IV) Whether the claimants are entitled to receive any compensation, if so, from whom and amount of compensation thereof?” 8. On behalf of the claimants, in oral evidence examined P.W.-1, Urmila Devi; P.W.-2, Chandrashekhar Rai; P.W.-3, Navin Kumar and; P.W.-4, Prashant Kumar. 8.1 In documentary evidence on behalf of the claimants filed Exhibit-1, Salary Slip of deceased Ashok Modi for month May, 2018; Exhibit-1/1, Salary slip of deceased Ashok Modi for month of April, 2018; Exhibit-2, Certified copy of FIR; Exhibit-3, Certified copy of charge-sheet; Mark- X, Photocopy of Postmortem report; Mark -X/1, Photocopy of death certificate of Ashok Modi; Mark -X/2, Photocopy of Income Tax Return for assessment year 2017-18 of Ashok Modi; Mark -X/3, Photocopy of Service Book of Ashok Modi; Mark -X/4, Photocopy of Insurance Policy of Bajaj Motorcycle No.JH-11M-0390; Mark -X/5, Photocopy of driving license of Gulsan Kumar Sao and; Mark -X/6, Photocopy of owner book of Bajaj Motorcycle No.JH-11M-0390. 9. The learned Tribunal after hearing the rival submissions of the learned counsel for the parties, passed the impugned award on 30.04.2022 and the amount of Rs.89,05,354/- was awarded in favour of the claimants against the opposite party No.2-Insurance Company with SI @ 7.5% from the date of filing of the claim petition till its realization and the Insurance Company was directed to deposit the same amount along with interest in the bank account of claimant within 30 days from the date of receipt of copy of the judgment and the said amount of compensation was directed to be distributed proportionately to the dependents of deceased. 10. Aggrieved from the impugned award dated 30.04.2022, the instant Miscellaneous Appeal has been directed on behalf of the New India Assurance Company Limited. 11. I have heard the learned counsel for the parties and perused the materials available on record. 12. The first plea raised on behalf of the appellant-Insurance Company is that the offending vehicle was being driven by its driver without having a valid and effective driving license, as such, there being fundamental breach of the terms and conditions of the Insurance Policy, therefore, the liability cannot be fastened upon the Insurance Company to pay the compensation, if any arises. 13. 13. Per contra, the learned counsel for the claimants and the learned counsel for the owner of the offending vehicle vehemently opposed the contentions made by the learned counsel for the appellant and contended that the offending vehicle was being driven by the son of the owner, namely, Gulsan Kumar Sao. In the claim petition, the driver is shown Gulsan Kumar Sao even if the FIR was lodged against Laxman Nayak and charge-sheet was also filed against Laxman Nayak, on very ground, it cannot be accepted that the offending vehicle was not being driven by its driver with a valid and effective driving license. On behalf of the claimants, the driving license of Gulsan Kumar Saw has been filed in documentary evidence, which is marked -X/5. As such, the learned Tribunal has rightly fastened the liability upon the Insurance Company to pay the compensation amount to the claimants. 14. From the very perusal of records, it is found that in the claim petition, the driver of the offending vehicle was not impleaded as opposite party. The owner of the offending vehicle, namely, Laxman Nayak has been arrayed as opposite party No.1. In the very claim petition, though in the column of the driver of the offending vehicle, name of Gulsan Kumar Sao is mentioned. On behalf of the owner of the offending vehicle opposite party No.2, no oral as well as documentary evidence has been adduced and the claim petition was proceeded against him ex-parte. 15. In order to decide the legality and propriety of the impugned award passed by the learned Tribunal, this Court scrutinize the evidence oral as well as documentary adduced on behalf of the claimants, which are reproduced hereinbelow: 15.1 P.W.-1, Urmila Devi, in her examination-in-chief on affidavit has deposed all the averments made in the claim petition and in cross- examination, this witness has stated that after the death of deceased, she has not received any pension, gratuity, provident fund, life cover scheme and ex- gratia amount concerning to her husband. After the death of her husband in her family, no one has received service on compassionate ground. 15.2 P.W.-2, Chandrashekhar Rai, in his examination-in-chief on the affidavit has deposed in regard to salary received by the deceased. He has filed the salary slip of month of April and May, 2018. After the death of her husband in her family, no one has received service on compassionate ground. 15.2 P.W.-2, Chandrashekhar Rai, in his examination-in-chief on the affidavit has deposed in regard to salary received by the deceased. He has filed the salary slip of month of April and May, 2018. In cross-examination, this witness says that all the benefits after the death of deceased had been given to the legal heirs of the deceased by the department and on compassionate ground, the son of deceased, Prashant Kumar has been given job on the post of Clerk in the school. 15.3 P.W.-3, Navin Kumar, who is the eyewitness of the accident, in his examination-in-chief stated that on 18.06.2018, Ashok Modi was walking at 09:40 pm near Shiv Parvati Vastralay and Bajaj Show Room, at the same time, from the side of Dhanbad, a Bajaj Pulsar Motorcycle bearing registration No.JH11M-0390 came, which was driving by its driver rashly and negligently and dashed to the deceased, whereby he sustained grievous injuries on the legs and head and was admitted to Primary Health Center Birni, from there, he was referred to RIMS, Ranchi, amid the away, on 19.06.2018 he died. In cross-examination, this witness says that he does not know the name of driver of motorcycle and where the driver of the said motorcycle resides, he is not aware. 15.4 P.W.-4, Prashant Kumar, who is the son of deceased, in his examination-in-chief on affidavit has deposed all the averments made in the claim petition and in cross-examination, this witness says that after death of his father, he has received service on compassionate ground and getting salary of Rs.19,000/- per month. His mother also gets pension of Rs.29,600/- per month. 16. From the evidence adduced on behalf of the claimants, there is neither pleading nor the evidence that the offending vehicle was being driven by Gulsan Kumar Sao, son of Laxman Nayak at the time of accident. 16.1 On behalf of the owner of the offending vehicle, neither the written statement nor any evidence oral as well as documentary has been adduced before the learned Tribunal. Not only this, on behalf of the owner of the vehicle, this appeal was defended by his learned counsel but also no pleading or evidence has been adduced in this appeal under Order XLI Rule 27 of the Code of Civil Procedure. Not only this, on behalf of the owner of the vehicle, this appeal was defended by his learned counsel but also no pleading or evidence has been adduced in this appeal under Order XLI Rule 27 of the Code of Civil Procedure. The FIR, which is on record filed on behalf of the claimants, from the perusal of the same, it is found that this FIR was lodged by Prashant Kumar, son of the deceased on 19.06.2018 and the date of accident is 18.06.2018 and the time is shown 09:40 pm of night and place of accident is shown Simrabad, Shiv Parvati Vastralay and Bajaj Showroom, Birni Police Station, Giridih. This FIR was lodged against the driver of the Bajaj Pulsar Motorcycle bearing registration No.JH-11M-0390, Laxman Nayak, Village Bagodih, P.S. Suriya, District Giridih, which was registered as Birni P.S. Case No.83 of 2018 on 19.06.2018. From the very contents of this FIR, it is found that the informant has stated that on 18.06.2018 at 09:40 pm, his father Ashok Modi, he himself, his younger brother-in-law were walking after having food nearby the road while walking in between Shiv Parvati Vastralay and Bajaj Show Room, a motorcycle, bearing registration No.JH-11M-0390 came driving by its driver rashly and negligently, dashed to his father, whereby he sustained injuries on head and legs and was rushed to the Community Health Center, Birni, from there, he referred to RIMS, Ranchi, amid the way, his father died. The said motorcycle was of Laxman Nayak of Bagodih, P.S. Saria, District Giridih, which was driven by himself. 16.2 The charge-sheet was filed by the Investigating Officer in Birni P.S. Case No.83 of 2018, which is also on record. From the very perusal of this charge-sheet, it is found that among the charge-sheeted witness, Navin Kumar is also the eyewitness of the accident. The Investigating Officer after having concluded the investigation, stated that the said accident was caused by the driver of Bajaj Pulsar Motorcycle bearing registration No.JH-11M- 0390 by driving it rashly and negligently. The said motorcycle was also seized and the driver of motorcycle was Laxman Nayak, who also sustained injury. Treatment was given at Dhanbad to him and no documents of the vehicle were produced to him. After concluding the investigation, he filed charge-sheet against the driver of the offending vehicle Laxman Nayak under Sections 279, 337, 338 and 304-A of the Indian Penal Code. 17. Treatment was given at Dhanbad to him and no documents of the vehicle were produced to him. After concluding the investigation, he filed charge-sheet against the driver of the offending vehicle Laxman Nayak under Sections 279, 337, 338 and 304-A of the Indian Penal Code. 17. From the evidence on record, it is proved that the offending vehicle was being driven by Laxman Sao, the owner of the vehicle himself as the same is evident from the contents of the FIR and also the charge-sheet filed by the Investigating Officer. 18. The insurance policy of the offending vehicle is also on record. From the very perusal of the same, it is found that this policy was valid from 09.02.2018 to 08.02.2019 and the said accident took place on 18.06.2018 at 09:40 pm, as such, the offending vehicle was insured by the New India Assurance Company Limited on the date and time of accident. 18.1 On behalf of the claimant, the registration certificate of the offending vehicle is also filed, which was issued on 30.12.2014 on the name of Laxman Nayak and valid up to 21.11.2029, as such, the registration of the offending vehicle was also valid and effective on the date and time of accident. The driving license, which is on record issued on the name of Gulsan Kumar Sao, son of Laxman Nayak. This driving license though is valid and effective on the date of occurrence; but the same does not belong to the driver of the offending motorcycle Laxman Nayak. Nothing is on record adduced on behalf of the claimants that the offending vehicle was not driven by Laxman Nayak. The FIR and the charge-sheet were also against the driver of offending vehicle Laxman Nayak and the Investigating Officer after concluded the investigation, stated that the driver of the offending vehicle was Laxman Nayak, who also sustained injury and he was given treatment in Dhanbad Hospital. 18.2 Contrary to the documentary evidence, neither on behalf of the claimant nor on behalf of the owner of the offending vehicle, evidence has been adduced that under what circumstances the driving license of Gulsan Kumar Sao was filed, more so, he was not driving the offending vehicle at the time of accident. 19. 18.2 Contrary to the documentary evidence, neither on behalf of the claimant nor on behalf of the owner of the offending vehicle, evidence has been adduced that under what circumstances the driving license of Gulsan Kumar Sao was filed, more so, he was not driving the offending vehicle at the time of accident. 19. Therefore, the very initial burden, which is to be discharged by the owner of the offending vehicle in regard to driving the offending vehicle with a valid and effective driving license is not discharged. Consequently, the onus cannot be shifted upon the appellant-Insurance Company. The learned Tribunal has recorded no finding at all while fastening the liability upon the Insurance Company to pay the amount of compensation. Since there is a fundamental breach of terms and conditions of Insurance Policy, no liability to pay the compensation can be fastened upon the appellant-Insurance Company, it is the owner of the offending vehicle, who has to pay the said amount of compensation as awarded by the learned Tribunal. Accordingly, first plea raised on behalf of the appellant-Insurance Company is decided in favour of the appellant and against the owner of the vehicle. 20. So far as the second plea raised on behalf of the appellant-Insurance Company challenging the quantum of compensation amount is concerned, which is on the ground that the son of deceased had got compassionate appointment after death of his father. This fact is proved by the claimant witnesses P.W.-2, Chandrashekhar Rai and P.W.-4, Prashant Kumar i.e. the son of deceased himself. Admittedly, the son of deceased, namely, Prashant Kumar has got the compassionate appointment after death of his father in accident. During his service period has got the job under dying in harness rules. 21. The crucial question arises whether after having received compassionate appointment after death of his father in accident, the claimants are entitled to compensation in Motor Accident Claim Petition or not? 21.1 The provision of the compassionate appointment after the death of the employee during his service period is statutory provision in all cases whether the death is natural, accidental, suicidal or homicidal, the dependent of the deceased are entitled to compassionate appointment. Therefore, I am of the view that the compassionate appointment has no co-relation with the amount of compensation, which the dependents of the deceased are entitled after the death in motor accident. Therefore, I am of the view that the compassionate appointment has no co-relation with the amount of compensation, which the dependents of the deceased are entitled after the death in motor accident. So far as the retiral benefits are concerned, the same are also vested right of the retired employee or his/her dependent. If the retiral benefit has been received by the dependents of the deceased after his death during service period, the same has also no co-relation with the amount of compensation to be awarded by the Motor Accident Claim Tribunal in a motor accident. 21.2 The plea raised by the learned counsel for the appellant-Insurance Company that the claimants cannot be given double benefit is not applicable in the case in hand. The learned counsel for the appellant has relied upon the judgment passed by the Hon’ble Apex Court in the case of Krishna & Ors. Vs. Tek Chan & Ors. passed in Special Leave Petition (C) No. 5044 of 2019. But the benefit of the same cannot be given to the appellant under the facts and the evidence on record in the case in hand. 21.3 The Hon’ble Allahabad High Court in the case of State of U.P. & Anr. Vs. Satyawati Devi & Ors. (2015) 4 ALJ 465 held that the compassionate appointment or ex-gratia has no co-relation with the amount received under the Motor Vehicles Act occasioned on account of the accidental death and same cannot be the ground to deny the compensation, the relevant part is quoted hereinbelow: “I do not find substance in the argument of learned Standing Counsel. Tribunal has recorded a categorical finding that on account of rash and negligent driving by the driver of the dumper, the said dumper has fallen in nala, causing death. The argument of learned Standing Counsel that since the wife of the deceased has been given compassionate appointment, she is not entitled for compensation as it amounts to double benefit, cannot be accepted. The compassionate appointment has been given under the Dying-in-Harness Rules. The compassionate appointment or ex-gratia has no co-relation with the amount receivable under the Motor Vehicles Act, 1988 occasioned on account of accidental death and will not be ground for denying the compensation under the Motor Vehicles Act, 1988.” 22. The compassionate appointment has been given under the Dying-in-Harness Rules. The compassionate appointment or ex-gratia has no co-relation with the amount receivable under the Motor Vehicles Act, 1988 occasioned on account of accidental death and will not be ground for denying the compensation under the Motor Vehicles Act, 1988.” 22. Therefore, the plea raised by the learned counsel for the appellant- Insurance Company that on account of receiving the compassionate appointment by the son of the deceased, the compensation cannot be awarded is not found sustainable. Accordingly, this very plea is decided against the appellant-Insurance Company and in favour of the claimants. 23. In view of the critical analysis of evidence on record, this Miscellaneous Appeal deserves to be partly allowed. 24. Accordingly, this Miscellaneous Appeal is partly allowed and the impugned award dated 30.04.2022 passed by the learned Principal District Judge-cum- Motor Accident Claims Tribunal, Dhanbad in Motor Accident Claim Case No.261 of 2018 in regard to the amount of compensation along with interest is confirmed; but the liability to pay the compensation amount by the appellant-Insurance Company is hereby set-aside and in place of Insurance Company, the opposite party No.2, the owner of the offending vehicle is directed to pay the amount of compensation along with interest as awarded by the learned Tribunal. 25. It is made clear if the amount of compensation, which has been deposited by the appellant-Insurance Company in compliance of the impugned award and any portion thereof has been released in favour of the claimants, the appellant-Insurance Company would be entitled to recover the same from the owner of the offending vehicle. The statutory amount deposited by the appellant be also refunded as per rules to the appellant. 26. Pending Interlocutory Application, if any, also stands disposed of.