Point of Law: 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”

JUDGMENT :

1. Heard Shri Ankur Mehrotra, learned counsel for the appellants and Sri Amit Singh, learned counsel for the respondent-insurance company.

2. This appeal, at the behest of the claimants, challenges the judgment dated 03.01.2020 passed by Presiding Officer Motor Accident Claims Tribunal, Ghaziabad (hereinafter referred to as 'Tribunal') in Claim Petition No.464 of 2010 awarding a sum of Rs.27,19,838/- with interest at the rate of 7% as compensation.

3. The accident is not in dispute. The respondents concerned have not challenged the liability imposed on them. The issues to be decided are the quantum of compensation awarded and whether deceased was also negligent in causing the accident. The deceased along with the claimants were going for worshipping at the temple of Kaila Devi on the fateful day i.e. 7.7.2010 when the deceased who was driving the Maruti Wagon R No UP 14 R 5355 was driving the vehicle on its correct side at about 11 hours when the vehicle reached Village Bada Gaon, Vehicle No.RJ 34 G 0950 being driven on wrong-side rashly and negligently dashed with the Maruti Car. The driver due to accidental injuries was in critical condition and no local hospital admitted him, he was shifted to Appolo Hospital Delhi where he succumbed to the injuries. The claimants contended that the accident occurred due to the negligence of driver of the other vehicle. The FIR was lodged against the driver of the offending vehicle. The deceased was an Engineer by profession in LG Electronic India Private Limited and was having a salary of Rs.31,184/-per month. The deceased was a bachelor and was 26 years of age. The deceased left behind him his father, mother and sister. The driver and the owner of the other vehicle involved in the accident did not appear before the tribunal nor they have appeared before this Court.

4. It is submitted by learned counsel for the appellants that the Tribunal has not granted any amount towards future loss of income which is required to be granted in view of the decision in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050 and in view of U.P. Motor Vehicles Rules, 1998 (hereinafter referred to as the U.P. Rules, 1998). It is further submitted that amount under non-pecuniary heads which is granted and the interest awarded by the Tribunal are on the lower side and requires enhancement. It is submitted that the issue of negligence also requires to be redetermined. The tribunal considered the deceased to be contributor of accident have taken place despite the fact that the driver who is the author of the accident against whom the charge sheet had been laid did not appear nor stopped into witness box. It is further submitted that as the deceased was survived by his parents and sister, the deduction towards personal expenses of the deceased should be 1/3rd as per U.P. Rules, 1998 and not half and other pecuniary benefits should not have been reduced from income of deceased. In support of his submission, learned counsel for the appellants has relied on the judgment of the Supreme Court titled Vimal Kanwar and others v. Kishore Dan and others, AIR 2013 SC 3830. It is submitted that the Supreme Court’s decision was cited before the tribunal but tribunal has deducted bonus, maintenance allowance, PF and gratuity from commuptable income holding that they are not part of the salary and, therefore, the tribunal held that the same cannot be considered to be part of the income. The tribunal added 40% to the salary, which should be 50%. It is submitted by learned counsel for appellant that most unfortunately, the tribunal has considered the judgment of Sandeep Khanduja v. Atul Dande and Ors., (2017) 3 SCC (Crl) 178. The claim petition was not filed under Section 163-A of the Motor Vehicles Act, 1988 (referred as the Act) Act but was filed under Section 166 of the Act and hen