JUDGMENT :

1. Both the appeals arise out of common judgment and award, hence same are being decided together by this common judgment.

SBCMA No.1297/2013:

2. Instant appeal has been filed by the appellant-Insurance Company against the judgment and award dated 13.12.2012 passed by the Court of learned Judge, Motor Accident Claims Tribunal, Dausa, District Dausa (Raj.) [for short ‘the tribunal’] in Compensation Petition No.417/2011, whereby the learned tribunal awarded a sum of Rs.23,60,516/-as compensation to the claimants respondents.

3. Learned counsel for the appellant-Insurance Company submitted that the son of the deceased namely; Ashok Kumar got service on compassionate ground. Therefore, his income must have been deducted while computing the loss of future income. In support of such contentions, counsel for the appellant has placed reliance upon the judgment delivered by the Hon’ble Apex Court in the case of Vimal Kanwar & Ors. Vs. Kishore Dan & Ors., reported in 2013(2) WLC (SC) Civil 50. Counsel further submitted that the trolley was attached to the tractor and the same was not insured. Hence, the insurance company is not liable to make compensation as there was breach in condition of the insurance policy.

4. E-converso, counsel for the claimants respondents opposed the arguments raised by the counsel for the appellant-insurance company and submitted that getting compassionate appointment cannot be a ground to deny the amount of compensation and loss of future income. In support of his contentions, counsel has also placed reliance upon the judgment delivered by the Hon’ble Apex Court in the case of Vimal Kanwar (supra). Counsel further submitted that the trolley was attached to the tractor and the tractor was insured. Hence, no separate insurance of the trolley was required. Counsel further submitted that the tribunal has not committed any error while fastening liability upon the insurance company to make the payment of compensation.

5. Heard counsel for the parties and perused the record.

6. The issue raised by the counsel for the appellant-Insurance Company is ‘Whether getting compassionate appointment comes within the periphery of the Motor Vehicles Act to be termed as “Pecuniary Advantage” liable for deduction?’ This issue was decided by the Hon’ble Apex Court in the case of Vimal Kanwar (supra) by holding 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.”

7. Bare perusal of the aforesaid judgment clearly indicates that getting compassionate appointment cannot be treated to be an advantage receivable by the heirs on account of one’s death and the same has no corelation with the amount receivable under a statute occasi