ORDER

1. Heard on I.A. No.1751/2020, an application under section 5 of Limitation Act.

2. The appeal was filed with delay of 46 days.

3. For the reasons mentioned in the application, the same is allowed. The delay in filing the appeal is hereby condoned.

4. This Miscellaneous Appeal under section 173 of Motor Vehicles Act has been filed against the Award dated 29.8.2019 passed by Second Additional Motor Accident Claims Tribunal, Rewa, District Rewa (M.P.) in Claim Case No.2000443/2016.

5. Since the factum of accident is not in dispute, therefore it is sufficient to mention that the deceased – Kamleshwar Prasad Tiwari died in a vehicular accident on 22.4.2016.

6. Challenging the Award passed by the Claims Tribunal, it is submitted by the counsel for the appellants that the Claims Tribunal should not have deducted the family pension which the appellant No.1 is getting on account of death of her husband and has also not granted consortium to the other appellants.

7. Per contra, it is submitted by the counsel for the respondents that in order to assess just compensation, any amount which is received by the claimants on account of death of the deceased is liable to be deducted. It is submitted that family pension is received by the wife only on account of her husband, therefore the Claims Tribunal has rightly deducted the amount of family pension which is being received by the appellant No.1.

8. Heard the learned counsel for the parties.

9. The contention of the counsel for the appellants is that the Claims Tribunal should not have deducted the family pension which is being received by the appellants on account of the death of the husband of appellant No.1, for the reason that the family pension is payable to the wife even otherwise than the accidental death.

10. Considered the submissions made by the counsel for the appellants.

11. It is true that the wife of a deceased employee would get the family pension even if the death of an employee takes places in a normal course, but said analogy cannot be made applicable in the motor accident claim cases.

12. During the lifetime of an employee, he is entitled for salary only and not pension and similarly, during the lifetime of an employee, his wife is not entitled for pension. The family pension is payable only after the death of an employee. However, for calculating the loss of income, the salary which was otherwise payable to the employee had he not died in a vehicular accident, has to be taken into consideration.

13. If the salary of the deceased is taken into consideration for assessing the loss of dependency and at the same time, the family pension received by his wife is not deducted, then it would create a very awkward situation. This aspect can be understood in a very simple manner. If the monthly salary of an employee is Rs.30,000/-, then after his retirement he will be entitled for a pension of Rs.15,000/- and after death of the employee, his wife would be entitled for family pension at the admissible rate. If the family pension is not excluded from the loss of dependency, then it would mean as under :--

Salary of the deceased employee – personal expenses + family pension + future prospects

14. In the present case, the Claims Tribunal has taken the monthly salary of the deceased as Rs.48,196/- and therefore his yearly income comes to Rs.5,78,352/-. Future prospect @ 30% would come to Rs.1,73,505.60. The yearly income of the deceased after including future prospect comes to Rs.7,51,857.60. Since the deceased is survived by four legal representatives, therefore his personal expenses are taken as 1/4th which comes to Rs.1,87,964.40. Therefore, yearly loss of income of the claimants come to Rs.5,63,893/-.

15. The appellant No.1 is getting monthly family pension of Rs.25,000/-, therefore yearly family pension comes to Rs.3,00,000/-. Accordingly, in case family pension is not deducted then yearly loss of dependency would come to Rs.5,63,893 + Rs.3,00,000 = Rs.8,63,893/-, whereas the decease