The court reinforced that all allowances must be included in calculating income for compensation, and compassionate appointments should not affect future earnings claims under the Motor Vehicles Act.

JUDGMENT :

SANDEEP JAIN, J.

1. The instant appeal has been filed by the claimants for enhancement of compensation under Section 173 of the Motor Vehicles Act, 1988, against the impugned judgment and award dated 30.7.2011 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No. 7, Muzaffarnagar in MACP No. 74 of 2010 ( Smt. Jyoti and others Vs. Neha Khatri and others ), whereby for the untimely death of Sachin Kumar on 30.12.2009 due to injuries suffered in a motor accident that occurred on 23.12.2009, a compensation of Rs.14,74,445/- along with interest @ 6% per annum has been awarded to the claimants, 80% of which has been ordered to be indemnified by the insurer of offending Car No. UA 07 G 1313.

2. Since no cross appeal has been preferred by the owner, driver, and insurer of the offending car, the factum of accident and negligence of the offending driver is not disputed by the respondents.

3. Learned counsel for the claimants-appellants submitted that Sachin Kumar (deceased) was driving his motorcycle number UP-11-S-2228 cautiously on his side of the road, which was hit by the offending Car No.UA-07-G-1313, which was being driven rashly and negligently, which was proved by eye witness PW-2 Satish Kumar. Still, the tribunal held there was 20% contributory negligence of the deceased, which is against the evidence on record. It was further submitted that the offending car crossed the divider and came to the wrong side of the road, causing the accident.

4. In view of the above, the tribunal erred in concluding that there was 20% negligence of the deceased. It was further submitted that the gross salary of the deceased was Rs.13,049/- per month, but the tribunal assessed compensation on a salary of Rs.11,659/- per month, which is erroneous, because all allowances being paid to the deceased were to be considered for assessing compensation.

5. It was further submitted that on the ground that a compassionate appointment was offered to the wife of the deceased, Jyoti, the tribunal has not awarded any compensation towards future prospects of the deceased, which is erroneous. It was submitted that in light of the decision of the Apex Court in the case of Vimal Kanwar and others Vs. Kishore Dan and others , (2013) 7 SCC 476 , the fact of compassionate appointment of the wife of the deceased should not have been considered while assessing compensation. It was submitted that claimants were entitled to get compensation towards future prospects of the deceased @ 50% of the income of the deceased, keeping in view Rule 220-A of the U.P. Motor Vehicle Rules, 1998.

6. It was further submitted that the tribunal awarded inadequate compensation under non-pecuniary heads and also awarded less interest @ 6% per annum instead of 7% per annum.

7. With these submissions, it was prayed that the appeal preferred by the claimants be allowed and compensation payable to them be enhanced.

8. Per contra, learned counsel for the respondent-Insurance Company submitted that the deceased was driving his motorcycle at the time of accident rashly and negligently, who contributed to the accident as proved by the evidence of the offending car's driver Neha Khatri, who was examined as DW-1 before the tribunal. Hence, the tribunal rightly assessed 20% contributory negligence on the part of the deceased. It was further submitted that since the wife of the deceased was offered compassionate appointment and