General Manager @APPELLANT@Hash Smt. Chanda Devi

The instant appeal under Section 173 of the Motor Vehicles Act, 1988 has been preferred by the non-claimant/appellants against the award dated

22.8.2007 passed by Judge, Motor Accident Claims Triubnal, Tonk (in short ‘the Tribunal’) in Claim Petition No.17/2006 titled as Smt. Chanda

Devi & Ors Vs. Mukesh Kumar & Ors., whereby the claim petition was allowed and the non-claimants were directed to pay compensation of

Rs.12,00,624/- to the claimants with interest @ 6% per annum from the date of filing of the claim petition.

Skeletal material facts necessary for disposal of this appeal are that the claimant-respondents being widow and children of the deceased-Ashok

Kumar, filed a claim petition under Section 166 & 140 of the Motor Vehicles Act, 1988 before the learned Tribunal claiming compensation for the

death of Shri Ashok Kumar, occurred on 24.9.2005. It is stated in the claim petition that on the fateful day, the deceased-Ashok Kumar was travelling

in bus No.RJ-08/P-0590 owned by non-claimant/appellants. The bus was driven by non-claimant/respondent No.4. When the bus reached near

Pech-Ki-Bawadi on Itunda Road, driver of the bus rashly and negligently hit the truck standing ahead of it and caused an accident. In the said

accident, Ashok Kumar sustained serious injuries and died. It is also stated in the claim petition that the deceased-Ashok Kumar was working as

Conductor in Rajasthan State Road Transport Corporation and he was getting salary of Rs.7990/- per month. It is further stated that Ashok Kumar

was 35 years aged at the time of accident. On account of death of Ashok Kumar, the claimants prayed to award compensation of Rs.35,59,740/- from

the non-claimants.

The non-claimant/respondent No.4 opposed the claim petition by filing reply thereto. The non-claimant admitted the factum of the accident and

registration of FIR as stated in the claim petition. The non-claimant also admitted the registration number, names of driver and owner of the bus

involved in the accident, and denied all other material averments of the claim petition stating therein that he was driving the bus carefully in his correct

side at slow speed. The accident occurred because of fault of driver of the truck, which was going ahead the bus. It is also stated that driver of the

truck suddenly stopped his vehicle without applying horn or any signal. Though answering nonclaimant applied the brakes, even then the bus collided

with the truck. It is further stated that the amount claimed in the petition is exaggerated and prayed to dismiss the claim petition against him.

The non-claimant/appellants opposed the claim petition by filing reply thereto. The non-claimants admitted the factum of accident and registration of

FIR, as also the registration number and names of driver and owner of the bus, as pleaded in the claim petition. The non-claimants also stated that the

bus was driven by it’s driver moderately and carefully in right direction but driver of the truck going ahead of the bus, suddenly applied brakes

without giving any indication, which resulted in the accident, otherwise driver of the bus was not negligent in any manner. It is further stated that

owner, driver and insurance company of the truck No.RJ-20/GA-0246 are necessary parties to the claim petition because of collision of two vehicles,

as such the non-claimants are responsible only to the extent of their contributory negligence and prayed to dismiss the claim petition.

On basis of the pleadings of the parties, learned Tribunal framed as many as five issues.

In support of the claim petition, claimants examined AW.1Smt. Chanda Devi, AW.2-Ladulal and exhibited 15 documents. No evidence has been led

by the non-claimants.

After hearing the parties, learned Tribunal decided issue No.1 in the manner that the accident occurred due to rash and negligent driving of the bus by

non-claimant No.1, who was driving the bus under the employment and for the benefits of nonclaimant-appellants. The learned Tribunal decided issues

No.3 & 4 in the manner that the accident occurred due to sole negligence of driver of the bus and contributory negligence is not proved as alleged by

the non-claimants. The learned Tribunal decided issues No.2 & 5 relating to relief, in favour of the claimants and awarded compensation as indicated

hereinabove.

Mr. Virendra Singh Yadav, learned counsel for the appellants submits that Ladu Lal (AW-2), who happens to be a conductor in the appellant-

Corporation, has deposed in favour of the claimants and tried to show himself to be an eye-witness of the incident, but his statements are not

trustworthy, as he stated in his crossexamination that he himself sustained injuries in the accident but he did not file any claim petition. No other

independent witness has been examined by the claimants in support of the claim petition, therefore, negligence of driver of the roadways bus is not

proved.

Learned counsel also submits that it is proved that one more vehicle i.e. the truck was also involved in the accident but owner, driver and insurance

company of the truck were not impleaded as party respondents in the claim petition so as to ascertain the inter-se liability of drivers of both vehicles.

 Learned counsel further submits that the claimantrespondent-Smt. Chanda Devi is getting family pension from the Corporation as deceased-Ashok

Kumar was employee of the Corporation, but the learned Tribunal has not considered this aspect of the matter, therefore, the compensation awarded

by the learned Tribunal is on higher side and prayed to allow the appeal setting aside the impugned judgment and to pass appropriate order in the facts

and circumstances of the case.

I have considered the submissions of learned counsel for the appellants and perused the record of the case.

The claimants examined A.W.2-Ladu Lal as eye-witness of the incident, who deposed that while going to Bundi on 24.9.2005, he was travelling in

Bus No.RJ-08-P-0590. A truck was standing ahead. The driver of the bus, driving rashly and negligently, hit the stationary truck. Ashok Kumar

travelling in the bus, has sustained injuries in the accident and died. The witness has been thoroughly cross-examined, but no such fact came on record

which may create any doubt on veracity of the witness.

Along with the claim petition, the claimants filed papers of police investigation. According to FIR (Ex.1) registered on the parcha bayan of Ladu Lal

(AW.2), driver of the aforesaid roadways bus was driving the bus rashly and negligently and hit a stationary truck from it’s back, which resulted in

the accident. At the time of the accident, the bus was driven by Mukesh Kumar. The FIR also reveals that Ashok Kumar (the deceased) was

travelling in the bus, who sustained injuries in the accident and died. During investigation autopsy on corpse of the deceased was performed and report

was obtained, site plan was prepared, the bus was seized and physically inspected, witnesses were examined and the truck was also seized. After

completion of investigation, the police filed charge-sheet against driver of the bus in concerned criminal court for trial of offences under Sections 279,

337 & 304-A IPC.

Learned Tribunal noted that the papers of police investigation reveal that accident occurred due to rash and negligent driving of the bus by it’s

driver, non-claimant/respondent No.4, and there was no negligence of driver of the stationary truck, which was involved in the incident. In view of

above, there is nothing on record to disbelieve the testimony of the witness Ladu Lal (AW.2) and I find no illegality or perversity in the findings

recorded by the learned Tribunal while deciding issue No.1, 3 & 4.

As far as compensation awarded to the claimant-respondents is concerned, admittedly the claimant-respondent-Smt. Chanda Devi is receiving family

pension from the appellant-Corporation because of sad demise of her husband Ashok Kumar, who was serving with the appellant-Corporation.

Learned counsel for the appellants did not produce any provision of law or judgment of Hon’ble Supreme Court or any High Court in support of

his submissions, so as to disentitle the claimants from getting compensation or the amount of family pension has any bearing on assessment of

compensation amount. In my considered opinion, the amount of family pension is not relevant while awarding compensation to the claimants against

the tortfeasor. while dealing with the similar controversy, Hon’ble Apex Court in Vimal Kanwar & Ors. Vs. Kishore Dan & Ors reported in

(2013) 7 SCC 476, has observed and laid down as under :

“18.The first issue is “whether Provident Fund, Pension and Insurance receivable by claimants come within the periphery of the Motor Vehicles

Act to be termed as ‘pecuniary advantage’ liable for deduction.â€​

19.The aforesaid issue fell for consideration before this Court in Helen C. Rebello (Mrs) and others vs. Maharashtra State Road Transport

Corporation & Anr. reported in (1999) 1 SCC 90. In the said case, this Court held that Provident Fund, Pension, Insurance and similarly any cash,

bank balance, shares, fixed deposits, etc. are all a “pecuniary advantage†receivable by the heirs on account of one’s death but all these have

no correlation with the amount receivable under a statute occasioned only on account of accidental death. Such an amount will not come within the

periphery of the Motor Vehicles Act to be termed as “pecuniary advantage†liable for deduction. The following was the observation and finding

of this Court:

“35. 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 accidental death. This amount is secured, is

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 correlation 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 the insured contributes in the form of premium. It is receivable even by the insured if he lives till

maturity after paying all the premiums. In the case of death, the insurer indemnifies to pay the sum to the heirs, again in terms of the contract for the

premium paid. Again, this amount is receivable by the claimant not on account of any accidental death but otherwise on the insured's death. Death is

only a step or contingency in terms of the contract, to receive the amount. Similarly any cash, 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 correlation 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 a similar and same plane having nexus,

inter se, between them and not to which there is no semblance of any co-relation. The insured (deceased) contributes his own money for which he

receives the amount which has no co-relation to the compensation computed as against the tortfeasor for his negligence on account of the accident.

As aforesaid, the amount receivable as compensation under the Act is on account of the injury or death without making any contribution towards it,

then how can the 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 receivable under the life insurance policy is contractual.â€​

In view of the above, I find no illegality or perversity in the findings recorded by the learned Tribunal with respect to issue No.2 & 5 in awarding

compensation to the claimants. The learned Tribunal has considered every aspect of the matter in assessing the amount of compensation, which does

not call for any interference in this appeal.

There is no merit in the appeal. Accordingly, the appeal is dismissed. No order as to costs.