This appeal is directed against the award of III Additional Motor Accident Claims Tribunal, Bhopal dated February 22, 1995 passed in Motor Accident Claims Case No. 51 of 1993.

Santosh Kumar Pandey was employed with National Fertilisers Limited as Junior Stenographer, On 4.9.1992, he was coming on scooter No. MOC 5412 along with one Rajesh Kumar Pandey towards Jyoti Talkies when Mini Bus M.P. 04-F/603 driven by Kunji Lal Sahu rashly and negligently and owned by Sanjay Kumar Jain and insured with the New India Insurance Company, dashed against the scooter. As a result of this accident, both the occupants of scooter died. Case under Section 304A of the Indian Penal Code was registered for prosecution. Claim for Rs. 50,42,000.00 was preferred.

Driver and owner of the Mini Bus have been proceeded exparte having failed to appear and defend the case. Insurance Company has stated that Mini Bus was insured with it and it has been denied that it was being driven rashly and negligently resulting in death of the deceased. Claim has been disputed and it is also stated that the driver did not possess driving licence at the time of accident, thereby committing breach of policy conditions. Moreover, it was not informed about the accident. Scooter was being driven rashly and negligently and drivers of both the vehicles contributed to the accident.

The Tribunal found that accident took place due to rash and negligent driving of the bus resulting in accident and death of the deceased. The Tribunal came to the conclusion that it was not proved that scooter was responsible for the accident nor it is proved that there was breach of policy conditions. Consequently the award for Rs. 2,70,000/- has been made carrying interest at the rate of Rs. 12% per annum from the date of application till date of payment. Claimants are not satisfied with the amount so assessed, hence this appeal.

The matter is considered, counsel for parties heard and record perused. First question for examination is the taking place of accident. There is no dispute that the bus was being driven rashly and negligently. It struck against the scooter on which deceased Santosh Kumar and Rajesh Kumar were travelling. Next question is what is just compensation payable in this case. Two documents are available on file. In one document (Exh. P/A1), the salary of deceased is shown to be Rs. 2284.95 and other benefits to the extent of Rs. 858.00. Another document is at page 14 of the file. It is dated 30.9.1992. It shows Rs. 3910.85 monthly salary of the deceased. It includes some of those allowances which are reflected in certificate dated 1.9.1994 (Exh. P/A1). However, it cannot be taken into consideration since it has not been proved. Therefore, document Exh. P/A1 has to be taken into consideration for determining compensation in this case. Total amount after calculating other monthly benefits to the basic salary i.e. fixed dearness allowance and variable dearness allowance. comes to Rs. 3142.

Contention of learned counsel for the respondent New India Insurance Company that amount receivable by the deceased towards medical allowance, fixed canteen subsidy. washing allowance, L.T.E., bonus, ex-gratia, uniform payable from time to time should not be added to the monthly salary of the deceased for assessment of the compensation. However, Shri Lalwani learned counsel for the claimants disputes this pre-position, submitting that this amount forms part of the monthly earning of the deceased from the employer, therefore it has to be taken to be the monthly income of the deceased for the purpose of calculating compensation in this case. We think there is substance in this submission.

After deducting 1/3rd towards personal expenses of the deceased from the amount of Rs. 3142/-, monthly dependency comes to Rs. 2095/-. However, we take a round figure and fix it at Rs. 2,000/- Therefore, the amount of compensation would come to Rs. 4,08,000/- (Rs. 2,000/- x 12 x 17). Claimants will also be entitled to Rs.

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