JUDGMENT
I.A. Ansari, J.
1. Both these appeals have arisen out of the award, dated 22nd June, 2005, passed in MAC Case No. 152/2002 and MAC Case No. 153/2002, by the Motor Accident Claims Tribunal, Dimapur, Nagaland whereby diverse sums of money have been granted, in favour of the claimant-respondents, as compensation.
2. As both these appeals have arisen out of the common award aforementioned and as, on the request made by the learned Counsel for the parties, both these appeals have been heard together, we dispose of these appeals by the common judgment and order.
3. The material facts and various stages leading to the present appeals may, in brief, be set out as follows:
(i) Two claim applications under Section 166 of the Motor Vehicles Act, 1988 (in short, the M.V. Act, 1988), were made by the persons, who had claimed themselves to be the legal representatives and dependants of two constables, namely, Constable No. 60793, late Zungkum Yimchunger and Constable No. 60783, late Tharongse, the claim application, which gave rise to MAC Case No. 152/2002, having been made by a person, who described himself as the widow of deceased, Zungkum Yimchunger, and the other claim application, which gave rise to MAC Case No. 153/2002, having been filed by the person, who described himself as father of the deceased Constable, late Tharongse, the cases of the claimants in both the claim cases were identical and may, in brief, be described thus: On 17th December, 1986, the Constables, namely, Constable No. 60793, late Zungkum Yimchunger., and Constable No. 60783, late Tharongse, both of whom were working in the 6th Nagaland Armed Police Battalion, with its headquarters at Tizit, in the District of Mon, Nagaland, were travelling, on duty, in Government vehicle No. NLP 1555 (truck). When the two Constables aforementioned were travelling, as indicated hereinbefore, the vehicle met with an accident near Lepa village due to rash and negligent driving of the driver of the said vehicle by its driver. In the accident, which so occurred, both the Constables died at the spot. While in the MAC Case No. 152/ 2002, which was instituted by the widow of the deceased Constable, late Zungkum Yimchunger, a sum of Rs. 5,00,000.00 was claimed as compensation, the MAC Case No. 153/ 2002, which was instituted by the father of the Constable, late Tharongse, a sum of Rs. 5,00,000.00 was sought for as compensation.
(ii) The appellants herein, as owners and persons responsible for making payment of the compensation, filed their written statement, wherein it was not denied by the present owner-appellants that the said two Constables were travelling in the vehicle aforementioned in discharge of their official duties. What was, however, agitated, on behalf of the owner-appellants, is that the said two Constables were not bona fide passengers, though it was, at the same time admitted by the appellants herein, as owners and persons responsible for making payment of compensation, that the two Constables aforementioned were travelling in their departmental vehicle at the relevant time of accident, on official duty. Another reason for resisting the claim for compensation was that as per the Government policy, the Constables were, at best, entitled to receive Rs. 1 lakh to Rs. 5 lakh as ex gratia payment from the Government depending upon their ranks in the service. Yet another reason for resisting the claim for compensation was that since the two Constables had died, while performing their official duties, they were not entitled to receive any compensation under the provisions of the M.V. Act, 1988.
(iii) The learned Trial Court framed four issues in the claim proceedings, the issues being as follows:
1. Whether the deceased was died in the motor accident bearing registration No. NLP-1555 (truck) took place on 17th December, 1986?
2. Whether the vehicle met with accident due to rash and negligent driving of the driver?
3. Whether the dead persons were travelling in the said truck?
4. Whether the deceased persons were travelling in the police vehicle as passenger or deputed for particular duty on the department expenses?
(iv) In each of the two claim applications, one of the claimants was examined as a witness and, on behalf of the appellants too, one witness was examined, whose evidence was treated as common evidence in both the cases.
(v) By its award, dated 22nd June, 2005, aforementioned, the learned Tribunal granted a sum of Rs. 3,00,500 as compensation in favour of the claimant, who had instituted MAC Case No. 152/2002, and sum of Rs. 3,54,500 as compensation to the claimants, who had instituted MAC Case No. 153/2002. Aggrieved by the awards so rendered, the owner-appellants have impugned the same in the present appeals.
4. We have heard Mr. B.N. Sarma, learned Senior Counsel appearing on behalf of the owner-appellants and Mr. B.N. Sarmah, learned Counsel, for the claimant-respondents.
5. It is submitted by Mr. B.N. Sarma, learned Senior Counsel, appearing on behalf of the owner-appellants that in the case at hand, the accident took place as far back as on 17th December, 1986, but the claim applications were made in the amendments introduced in the M.V. Act, 1988, with effect from 14th November, 1994, the period of limitation for filing of the claim application was six months and since the accident, in the present case, took place on 17th December, 1986, i.e. before the amendments, as indicated, were introduced, the present set of the claim applications having been made, in the year 2002, were barred by limitation. This apart, points out Mr. Sarma, learned Senior Counsel for belatedly making the claim applications, no explanation has been offered by the claimant-respondents and no explanation is discernible, in this regard, from the materials on record.
6. It is further submitted by Mr. B.N. Sarma, learned Senior Counsel, that in the case at hand, there was no evidence on record that the accident had occurred due to rash and negligent driving of the vehicle by its driver and hence, in such a case, the learned Tribunal ought to have held that no case of granting of compensation under Section 166 of the M.V. Act, 1988, had been made out by the claimants.
7. At any rate, submits Mr. Sarma, the learned Senior Counsel, the amounts of compensation awarded to the claimants are exorbitant and not in accordance with law. The impugned award, therefore, submits Mr. B.N. Sarma, learned Senior Counsel, deserves to be interfered with and set aside.
8. Resisting the submissions made on behalf of the appellants, Mr. B.N. Sarmah, learned Counsel, appearing on behalf of the claimant-respondents has submitted that notwithstanding the fact that the accident had taken place prior to the date, when the amendments were introduced to the M.V. Act, 1988, doing away with the period of limitation, the amended provisions were applicable to the claimant-respondents herein and there was no period of limitation for filing of the claim applications.
9. There were, pointed out by Mr. Sarmah, learned Counsel for the claimant-respondents, specific statements made in the claim application to the effect that the accident had taken place due to rash and negligent driving of the vehicle by its driver and these assertions of the claimants having not been denied by the appellants, it is not, now, open to the owner-appellants to contend before this Court, for the first time, that the accident had not been proved to have taken place due to rash and negligent driving of the vehicle aforementioned by its driver.
10. In support of his contention that the claim applications cannot be treated as barred by limitation, Mr. B.N. Sarmah, learned Counsel for the claimant respondents, has placed reliance on Dhannalal v. D.P. Vijayvargiya and Ors. and Director General of Police Nagaland Kohima and Anr. v. Hauji Yimchunger and Anr. 2004 (Supp.) GLT 646; Henderson v. Henry E. Jenkins Sons and Ors. 1970 ACJ 198; Shanti Swaroop Agarwal v. U.P. State Road Transport Corporation ; National Insurance Co. Ltd. v. Prembhai Patel and Sons ; Muhini Thakuria and Ors. v. Dhiraj Kalita and Ors. II (1994) ACC 1 (DB) : (1993) 2 GLR 24 : and Union of India v. Golendra Muchahari II (2003) ACC 736 (DB) : 2003 (3) GLT 199.
11. While considering the question as to whether the present claim applications are barred by limitation, what is important to note is that the M.V. Act, 1988, which repealed the Motor Vehicles Act of 1939, came in force, with effect from 1st July 1989. The M.V. Act, 1988, which so came into effect, had, initially, prescribed a period of limitation for filing of claim applications by laying down, in Sub-section (3) of Section 166, thus, “No application for such compensation shall be entertained unless it is made within six months of the occurrence of the accident:
Provided that the Claims Tribunal may entertain the application after the expiry of the said period of six months but not later than twelve months, if it is satisfied that the applicant was prevented by sufficient cause from making the application in time.”
12. Thus, the M.V. Act, 1988, which came in force with effect from 1st July, 1989, prescribed, initially, a period of six months from the date of the accident as the period of limitation for filing of the claim applications. This general bar of limitation was subject to the condition that the Claims Tribunal was vested with the power to entertain claim applications after the expiry of the said period of six months, but not later than twelve months provided that the Tribunal was satisfied that the application was prevented by sufficient cause from making the application in time.
13. However, Sub-section (3) of Section 166 stands omitted by virtue of the Motor Vehicles (Amendment) Act, 1994, which came into effect from 14th November, 1994. In terms of the amendments, which have been so introduced, since after 14th November, 1994, no period of limitations exists for making the claim applications for compensation under Section 166 of the M.V, Act, 1988, The question, therefore, Is this: In respect of an accident, which took place prior to 14th November, 1994 and in respect whereof, no claim for compensation had been made, is it possible to make a claim application if the claim had become barred under the old provisions of Sub-section (3) of Section 166? Having considered this question, the Apex Court, in Dhannalal v. D.P. Vijayvargiya and Ors.(supra) has held that when Sub-section (3) of Section 166 has been omitted, the Tribunal has to entertain a claim application without taking note of the date on which the accident had taken place and that a claim application cannot be thrown out on the ground that the claim application had become, under Sub-section (3) of Section 166, barred by the time Sub-section (3) of Section 166 came to be omitted. The observations made, in this regard, by the Apex Court, in D.P. Vijayvargiya (supra), may be reproduced as follows:
7. In this background, now it has to be examined as to what is the effect of omission of Sub-section (3) of Section 166 of the Act. From the Amending Act it does not appear that the said Sub-section (3) has been deleted retrospectively. But at the same time, there is nothing in the Amending Act to show that benefit of deletion of Sub-section (3) of Section 166 is not be extended to pending claim petitions where a plea of limitation has been raised. The effect of deletion of Sub-section (3) from Section 166 of the Act can be tested by an illustration. Suppose an accident had taken place two years before 14th November, 1994, when Sub-section (3) was omitted from Section 166. For one reason or the other no claim petition had been filed by the victim or the heirs of the victim till 14th November, 1994. Can a claim petition be not filed after 14th November, 1994 in respect of such accident? Whether a claim petition filed after 14th November, 1994 can be rejected by the Tribunal on the ground of limitation saying that the period of twelve months which had been prescribed when Sub-section (3) of Section 166 was in force having expired the right to prefer the claim petition had been extinguished and shall not be revived after deletion of Sub-section (3) of Section 166 w.e.f. 14th November, 1994? According to us, the answer should be in negative. When Sub-section (3) of Section 166 has been omitted, then the Tribunal has to entertain a claim petition without taking note of the date on which such accident had taken place. The claim petition cannot be thrown out on the ground that such claim petitions were barred by time when Sub-section (3) of Section 166 was in force.
14. From the observations made in D.P. Vijayvargiya (supra), it becomes transparent that irrespective of the date on which the accident might have taken place, a claim application under Section 166 can be made after Sub-section (3) of Section 166 has been omitted. Since Sub-section (3) of Section 166 no longer exists, the Tribunal Is not required to make any Inquiry as to why the claim was not made within the period of limitation prescribed by Sub-section (3) of Section 166. There Is, however, only one exception to this general principle and the exception is that when a claim application, having already been made, stood rejected by a Tribunal or a High Court on the ground that the claim application was barred by limitation prescribed under Sub-section (3) of Section 166, such a claim application cannot be re-opened, for, a judicial order has already attained finality in such a case. This aspect of the matter becomes clear if one reads the observations made by the Apex Court, in D.P. Vijayvargiya (supra), which run as follows:
8. The matter will be different if any claimant having filed a petition for claim beyond time which has been rejected by the Tribunal or the High Court. The claimant does not challenge the same and allows, the said judicial order to become final. The aforesaid Amending Act shall be of no help to such claimant. The reason being that a judicial order saying that such petition of claim was barred by limitation has attained finality. But that principle will not govern cases where the dispute as to whether petition for claim having been filed beyond the period of twelve months from the date of the accident is pending consideration either before the Tribunal, High Court or this Court. In such cases, the benefit of amendment of Sub-section (3) of Section 166 should be extended.
15. It, therefore, no longer remains res Integra that a claim application made under Section 166 of the M.V. Act, 1988, cannot be treated to be barred by limitation even if the accident had taken place, as in the case at hand, before Sub-section (3) of Section 166 came to be omitted with effect from 14th November, 1994. Situated thus, it is clear that in the present case the claim applications were not barred by limitation and was rightly entertained by the learned Tribunal.
16. Coupled with the above, what is of paramount importance to note is that in the claim proceedings before the learned Tribunal, in the present case, it was, at no stage, contended, on behalf of the owner-appellants, that the claimants were not the legal representatives of the deceased constables concerned. Though these appeals, as rightly contended by Mr. B.N. Sarma, learned Senior Counsel, are extension of the claim proceedings, instituted in the Tribunal, yet the fact remains that there was no foundation laid for the doubts, which are, now, expressed, on behalf of the appellants, to the effect that the claimants may not be the legal representatives of the deceased Constables concerned. We are, therefore, firmly of the view that it has no longer remained open for this Court to decide, particularly, in the absence of any positive material being made available to this Court, that the claimants may not be the legal representatives of the deceased Constables concerned.
17. Now, turning to the question as to whether the claim proceedings, in the present case, could have been entertained under Section 166, what is pertinent to note is that in each of the two claim applications, the claimant(s) specifically stated, in para 5 of their claim application(s), that the accident had taken place due to rash and negligent driving of the vehicle by its driver. The opposite party-appellants herein never denied their assertions. A fact, which is not denied, can be safely deemed to have been admitted.
18. In the case at hand too, when the assertions of the claimants made to the effect that the accident had taken place due to rash and negligent driving of the vehicle, in question, had not been denied by the owner-appellants, no issue can be said to have been raised, in the claim proceedings as to whether the accident, in question, did or did not take place due to rash and negligent driving of the vehicle by its driver. In the absence of any issue having been raised, in this regard, by the appellants, no burden, in fact, rested on the claimants to prove as to how the accident had taken place nor did it remain the onus of the claimants to prove that the accident had taken place due to rash and negligent driving of the vehicle by its driver. In other words, as no dispute was raised on the plea of the claimants that the vehicle, in question, met with the accident due to rash and negligent driving by the driver of the said vehicle, no evidence was required to be adduced by the claimants to prove as to how the driving of the vehicle by its driver had led to the bursting of tyre and became the cause of accident. Having given our extremely thoughtful and most anxious consideration, we are firmly of the view that in the absence of any denial at all as regards the assertions made by the claimants that the accident had taken place due to rash and negligent driving of the vehicle by its driver, we cannot, now, decide, in these appeals, as to whether the accident had really taken place due to rash and negligent driving of the vehicle by its driver or not.
19. What, thus, crystallises from the above discussion is that since the claimants were, admittedly, legal representatives of the deceased Constables concerned, the present claim proceedings were not barred by limitation and, further, there being no dispute with regard to the fact that the accident was the result of the fault on the part of the driver of the vehicle, in question, there was really no impediment in law, on the part of the learned Tribunal, to award adequate compensation to the claimants.
20. Coupled with the above, it is noteworthy that the two deceased Constables aforementioned were, admittedly, travelling in the vehicle, in question, on official duty. In such a situation, it cannot be said that when the two Constables died, while on duty, due to fault on the part of the driver of the vehicle, the claim applications, made under Section 166, were not maintainable.
21. Now, turning to the question of the quantum of compensation, what is imperative to note is that in MAC Case No. 152/2002, the claimant is the widow of the deceased Constable, who died at the age of 26 years, his last drawn salary being Rs. 2,500.00 per month. Since the age of the claimant was 32 years, the learned Tribunal used 17 as the multiplier. The multiplier, so used, cannot be said to be inappropriate. We have also carefully gone through the calculations made by the learned Tribunal for determining the amount of compensation and we find that the calculations made, in this regard, by the learned Tribunal suffer from no infirmity. The learned Tribunal was, therefore, correct in holding that the total amount payable as compensation to the claimant, in MAC Case No. 152/2002, was to the tune of Rs. 3,00,500.00.
22. However, in MAC Case No. 153/2002, the claimant is the father of the deceased Constable. While the said deceased was aged about 28 years and was drawing monthly salary of Rs. 2,500.00 at the time of the accident, the claimant was, at the relevant point of time, 65 years old. The learned Tribunal applied 17 as the multiplier. We find that the use of 17 as the multiplier was inappropriate. The claimant, being older than the said deceased, it was the claimant’s age, which was relevant for the purpose of choosing the multiplier. As the claimant was 65 years old, the correct multiplier was 5 and if 5 is used as the multiplier, the compensation works out to be, at the most, Rs. 1,00,000. To this amount needs to be added Rs. 5,000 as compensation for loss of estate of the said deceased and for funeral expenses. In short, the amount of compensation fixed at Rs. 3,54,500.00, in MAC Case No. 153/2002, is illegal and unjustified; rather, the claimant-respondent, in MAC Case No. 153/2000, was entitled to receive, in all, Rs. 1,05,000 as total compensation.
23. Now, let us turn to the question as to what effect the Government’s policy of granting ex gratia payment of Rs. 1 to 5 lakh to a Government servant, who dies on duty shall have on the quantum of compensation assessed by the learned Tribunal. In this regard, it may be carefully noted that in terms of the said Government notification, the amount payable to the next of kin of a deceased Government employee is a variable amount inasmuch as the amount depends on the rank, which the employee held in the service concerned. In the case at hand, there is no specific finding and/or assertion, on the part of the appellants, that any ex gratia payment has been made to the claimants.
24. Be that as it may, the Government notification, dated 6th June, 1995, which the appellants have relied upon, shows that the ex gratia amount is made available to a Government employee, who is killed in, action/encounter. The question, therefore, is this: whether the amount, which the notification dated 6th June, 1995, aforementioned, provides to a Government employee can be deducted from the amount of compensation, which is, otherwise, found payable to such an employee under the M.V. Act, 1988? The question, so posed, necessitates a clear understanding of the entire concept and the scheme of compensation, which has been available to a victim under the M.V. Act, 1988.
25. In order to clearly comprehend the principles governing assessment of compensation under the M.V. Act, 1988, what may be noted is that under the common law, damages for pecuniary loss, in the cases of tortious liability, are assessed by ascertaining, on the one hand, the loss suffered by the claimant of such pecuniary benefits, which would have accrued to the claimant, but for the death of the person, whose death has given rise to the claim for compensation, and, on the other, the pecuniary advantages, which the claimant has derived, because of the death of the person concerned, irrespective of the source from which the pecuniary advantage has been so derived. Having assessed the loss of the future pecuniary benefits, on the one hand, and the pecuniary advantage, on the other, as indicated hereinbefore, a balance-sheet of loss and gain, occasioned by the death of the person (whose death has given rise to the claim for compensation) is prepared and the claimant is paid the damages for any loss, which such a balance-sheet may reveal. In short, it is the balance of the loss and gain of the claimant, occasioned by the death, which is determined for the purpose of ascertaining if the claimant has really sustained any loss and, if so, what is the total assessed loss sustained by the claimant. Whatever loss is so assessed becomes payable to the claimant in the form of damages or as compensation. For instance, if the monthly income of the deceased was rupees six thousand and he used to contribute to the claimant a sum of rupees two thousand per month, the loss of future pecuniary benefit of the claimant would be, in the absence of anything else, rupees two thousand per month. In other words, in such a case, loss of the claimant’s future pecuniary benefits would be to the extent of rupees two thousand per month. Supposing, now the deceased left a property worth rupees one lakh. and a bank deposit of fifty thousand as his total assets. In such a case, the pecuniary advantage derived by a claimant would be a total sum of rupees one lakh fifty thousand. On balancing the loss of the pecuniary benefit of the claimant, which would be to the tune of rupees two thousand per month, as against the pecuniary advantage gained by the claimant, which would be, in all to the extent of rupees one lakh fifty thousand, if the Court finds that despite such pecuniary advantage, which the claimant has received, there is still some amount of loss sustained by the claimant, the Court would compensate the same by awarding damages accordingly.
26. The scheme of the M.V. Act, 1988, is, somewhat, different from the common law principle described hereinabove. The M.V. Act, 1988, makes available damages for pecuniary loss, which the claimant suffers due to death of the victim in an accident. This is evident from a bare reading of Section 165 of the Motor Vehicles Act, 1988, which clearly demonstrates that the Tribunal is constituted for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both.
27. The compensation, under the scheme of the M.V. Act, 1988, is, thus, made available only on account of the ‘accidental’ injury or death and not on account of injury or death arising out of any cause other than ‘accident’. Under the scheme of the M.V. Act, 1988, it is only the pecuniary advantage, which a claimant derives because of the ‘accident’ or, in other words, because of the ‘accidental’ death, which would be taken into account for the purpose of making assessment of the quantum of compensation. To put it differently, under the scheme of the M.V. Act, 1988, only that amount, which a claimant would receive because of the ‘accident’ or ‘accidental’ death that would be deducted from the loss of future pecuniary benefits. Consequently, all such pecuniary advantages, derived by a claimant, which have no bearing with, or which have no co-relation to, the ‘accidental’ death, would be included, while computing the total compensation. Any amount, which is received or receivable not only on account of the ‘accidental death’ but even otherwise, cannot be construed to be the “pecuniary advantage” liable for deduction under the scheme of the M.V. Act, 1988.
28. In short, while computing the compensation, under the scheme of the M.V. Act, 1988, pecuniary advantage has to be interpreted as the advantage derived by a claimant as a result of the ‘accidental’ death and the loss of future pecuniary benefit is to be interpreted as the loss sustained by the claimant on account of the ‘accidental’ death. Thus, under the M.V. Act, 1988, pecuniary advantage, receivable by the claimant, would mean pecuniary advantage, which the claimant gains on account of ‘accidental’ death and not on account of other forms of death. Making this position of law clear, the Apex Court in, Helen C. Rebello (Mrs.) and Ors. v. Maharashtra Road Transport Corporation and Anr. , observed:
33. Thus, it would not include that which the claimant receives on account of other forms of deaths, which he would have received even apart from accidental death. Thus, such pecuniary advantage would have no co-relation to the accidental death for which compensation is computed. Any amount received or receivable not only on account of the accidental death but that which would have come to the claimant even otherwise, could not be construed to be the “pecuniary advantage”, liable for deduction. However, where the employer insures his employee, as against injury or death arising out of an accident any amount received out of such insurance on the happening of such incident may be an amount liable for deduction. However, our Legislature has taken note of such contingency through the Proviso of Section 95. Under it, the liability of the insurer is excluded in respect of injury or death, arising out of and in the course of employment of an employee. See United India Insurance Co. Ltd. and Ors. v. Patricia Jean Mahajan and Ors. .
29. What crystallises from the above discussion is that while computing the quantum of compensation under the common law, ‘pecuniary advantage’, derived by a claimant from every available source, is calculated for the purpose of computing compensation, the Tribunal, under the scheme of the M.V. Act, 1988, can assess, in India, only that ‘pecuniary advantage’, which the claimant may derive because of the accident and not because of the death as such. Thus, such ‘pecuniary advantage’, which would have no co-relation to the accidental death, cannot be taken into account for the purpose of computing compensation. In other words, the amount, which a claimant gains as a result of the ‘accidental death’, would only be taken into account for the purpose of computing the compensation receivable by the claimant and not any amount, which would be available to the claimant even if the deceased would have met with death otherwise than by ‘accident’. For illustration, if a Government policy be that when an employee of the Government dies, while on duty, an ‘accidental death’, the Government would make available, as compensation, to the heirs of the deceased employee a particular amount, say rupees one lakh, the amount, which is so received by the heirs of such a deceased, would be deducted from the total compensation, which may have to be made available to the heirs of the deceased employee if the vehicle, which had caused the ‘accident’ and given rise to the claim for compensation, is of the Government; but the amount, which is receivable by the heirs of such a deceased not because of the ‘accident’, but because of the death of the deceased, such as pension, pensionary benefits, insured amount, such amount(s) would not be deducted from the total compensation payable to the heirs of the deceased.
30. Thus, the pecuniary advantage, which is gained by a claimant as a result of the ‘accident death’, is only relevant and is deductible as pecuniary advantage from the total compensation, which may be, otherwise, found payable to the claimant; whereas the pecuniary advantage, which may be available to the claimant, because of the death of the deceased-be the death an ‘accidental’ one or otherwise-such pecuniary advantage would not be deductible from the total sum of money found payable to the claimant as compensation. This principle behind computation of compensation under the M.V. Act, 1988, is based on the principle that a claimant shall not, because of the ‘accidental death’, make gain twice from two sources arising out of the same transaction, namely, the same accident.
31. Broadly speaking, thus, the receipt of the provident fund by an employee is nothing, but a deferred payment made out of the contributions, which the employee, during the tenure of his service, makes. The employee, who makes contribution, or his heir are entitled to receive this amount irrespective of the fact whether the deceased met with ‘accidental death’ or otherwise. The amount receivable, under the provident fund, is, thus, clear and certain to be received, while the amount, under the M.V. Act, 1988, is uncertain and receivable only on the happening of the ‘accident’, which may or may not take place at all. Similarly, family pension is also earned by an employee for himself and for the benefit of his family irrespective of the fact whether his death is ‘accidental’ or otherwise. Thus, there is no co-relationship between the ‘accident’, on the one hand, and the amounts available, either under the provident fund or family pension, on the other. Even in the case of life insurance policy, the amount covered by the policy is received on account of the contract, which the insured had with the insurer. The amount, covered by an insurance policy, is receivable by the insurer, because of the premium he pays and not because of any other reason. Thus, the amount receivable, under an insurance policy, is also receivable in terms of a contract for a premium paid and not on account of the ‘accidental death’. The advantage, so received, cannot be deducted from the compensation, which is, otherwise, found payable to a claimant as a loss of future pecuniary benefit arising out of an ‘accident’.
32. From the discussions held above, it becomes abundantly clear that the ex-gratia payment, which, in the present case, the Government is liable to pay, if a person dies on duty, is not necessarily on account of any ‘accidental death’. The Government undertakes to make ex gratia payment of money available to the next of the kin, as matter of fact, for the death of the Government employee, on duty, irrespective of the fact whether the death has occurred due to ‘accident’ or otherwise. The ex gratia amount, therefore, even if paid in the present case, cannot, in the light of the law laid down in Helen (supra), be deducted from the total amount of compensation payable to the claimant-respondents.
33. Because of what have been discussed and pointed out above, while we find no reason whatsoever to interfere with the impugned award granted in MAC Case No. 152/2002, the award, granted in MAC Case No. 153/2002, needs to be suitably modified. The MAC Appeal No. 19 (K) 2005 shall, therefore, stand dismissed. As regards MAC Appeal No. 20 (K) 2005, we hold the claimant-respondent entitled to receive, in all, Rs. 1,05,000 as compensation. The MAC Appeal No. 20 (K) 2005, therefore, partly succeeds, as indicated hereinbefore, and the impugned award, passed in MAC Case No. 153/2002, shall accordingly stand modified.
34. No order as to costs.
35. Send back the LCRs forthwith.