JUDGMENT
B.R. Arora, J.
1. This appeal is directed against the Award dated 9.11.92 passed by the Judge, Motor Accident Claims Tribunal, Bikaner, by which the learned Judge of the Tribunal awarded the compensation amounting to Rs. 3,99,000/- to the claimants along with interest @ 12% per annum with effect from 4.8.90 and if the amount of compensation is not paid within the period of three months then the respondents (non claimants) will be liable to pay interest @ 15% per annum. The1 amount of compensation is to be distributed amongst the various claimants in accordance with the scheme framed by the learned Judge of the Tribunal. The learned Judge of the Tribunal, also, awarded the costs of Rs. 200/- to the claimants.
2. Claimants, viz. Smt. Maya Devi (widow of deceased Jaipal Singh), Narendra Singh, Rajesh Singh and Jitendra Singh (sons of deceased Jaipal Singh), who are the dependents of the deceased, filed a claim petition before the Motor Accident Claims Tribunal, Bikaner for the award of compensation amounting to Rs.4,98,090/-. The case of the claimants, as set-out in the claim petition, is that on 6-2-90, deceased Jaipal Singh (Assistant Engineer) and Nand Ram (Junior Engineer) were going from village Mahajan to Bikaner on election duty. They were travelling in Jeep No. RRF 2202 which was being driven by its driver Man! Ram. When the jeep covered the distance of about 13 kms. from Loonkaransar towards Bikaner, at about 10.45 p.m. one truck container was found parked on»the left side of the road. The driver of the jeep (Mani Ram) was driving the jeep rashly and negligently who lost the balance and the jeep dashed against the truck container and thrust into the rear portion of the truck container. Jeep driver Mani Ram,, on account of this accident, died at the spot while Jaipal Singh and Nand Ram received injuries. They were brought to P.B.M. Hospital, Bikaner, where Jaipal Singh died on 8.2.90. At the time of death, Jaipal Singh was employed as the Assistant Engineer in Indira Gandhi Nahar Pariyojna and was getting the salary of Rs. 3048/-, per month and was aged about 48 years. The claimants, therefore, claimed Rs. 3,65,760/-for the loss of dependency, Rs. 22,330/- for the loss of bonus for ten years which the deceased was getting at the rate of salary of 22 days in a year, Rs. 30,000/- towards the loss of promotional benefits for ten years, Rs.50,000/- on account of physical pain and mental agony and the loss of prestige In the society as claimant No. 1 Smt. Maya Devi became widow, Rs. 10,000/- on account of loss of consortium to Smt. Maya Devi, Rs. 20,000/- for the loss of love and affection of their father to claimants No. 2 to 4 and Rs. 10,000/- for the expenses incurred on post-death social and customary rites.
3. The claim ‘petition was opposed by the respondent (non-claimants) oil’ the ground that the jeep was not being driven rashly and negligently by its driver Mani Ram and the compensation claimed by the claimants is highly excessive and no compensation can be awarded for the loss of bonus for ten years as the deceased was not getting any bonus. It was, also,- stated that the mental agony and physical pain cannot be ascertained in terms of money and no amount can be awarded for post-death social and customary rites and claimant No. 1 Smt. Maya Dave has not suffered the loss of prestige on account of death of her husband.
4. The claimants, in support of their claim, examined PW 1 Smt. Maya Devi the widow of deceased Jaipal Singh and PW 2 Nand Ram, Junior Engineer, Who is an eye witness to the occurrence and was, also, going in the same jeep on election duty. The claimants, also, placed reliance over the F.I.R. (Ex. P.I) the post-mortem report of deceased and the Last Pay Certificate of the deceased. The non-claimants did not produce any evidence in support of their case. The learned Judge of the Tribunal awarded the compensation amounting to Rs. 3,84,000/-as loss of dependency, Rs. 10,000/- on account of loss of consortium to the widow and Rs. 5000/- for the performance of the social and customary rites. It is against this award dated 9.11.92 that the State of Rajasthan and others have filed this appeal.
5. The claimants rest contended with the award passed by the learned Judge of the Tribunal and they neither filed any appeal nor any cross-objection challenging the award passed by the learned Judge of the Tribunal.
6. It is contended by the learned counsel for the appellants that the accident never took place on account of the rash and negligent driving of the jeep by its driver Mani Ram, rather the truck container was parked on the left side of the road without any light-signals and, therefore, in order to avoid accident from another truck coming from the opposite side when the jeep was turned, it thrusted into the rear portion of the truck-container and the accident took place, it is, also, contended by the learned counsel for the appellant that the compensation awarded by the learned Judge of the Tribunal is highly excessive and the learned Judge of the Tribunal was not justified in awarding a sum of Rs. 5000/- on account of post-death social and customary rites expenses and in not deducting Rs. 75,000/- received by the claimants as ex gratia payment made by the State Government on account of death of deceased Jaipal Singh on election duty. Learned counsel for the respondent-claimants, on the other hand, has submitted that the ex gratia grant made by the State is a voluntary payment made by it on charitable ground on the occasion of death and, therefore, this amount cannot be deducted for the purpose of calculating the amount of compensation under the Motor Vehicles Act and the learned Judge of the Tribunal was justified in awarding Rs. 5000/- as compensation towards post-death social and customary rites. It is, also submitted by the learned counsel for the respondents that the learned Judge of the Tribunal has committed an error in deducting the amount of Rs. 96,000/-from the compensation determined on account of lump-sum payment to the claimants and in this view of the matter, the award passed by the learned Judge of the Tribunal does not require any interference.
7. I have considered the submissions made by the learned counsel for the parties.
8. The first question which requires consideration is what was the cause of the accident and whether it was on account of rash and negligent driving of the jeep by its driver Mani Ram that the accident took place or the accident took place on account of the negligence on the part of the driver of the truck-container who had parked the vehicle on the left side of the road without any proper lightings.?
9. The claimants have produced PW 2 Nand Ram (Junior Engineer), who was the eye witness of the occurrence and was travelling in the jeep along with deceased Jaipal Singh in connection with election duty. PW 2 Nand Rain has stated that he along with deceased Jaipal Singh was going from Mahajan to Bikaner in the jeep No. RRF 2202. When the jeep crossed 13 to 14 kms. from Loonkaransar towards Bikaner side, this accident took place. The driver of the jeep was driving it at a fast speed. A truck was coming from the opposite side. In order to avoid the accident from the truck, the driver of the jeep took, the jeep on the side, lost control over the jeep and the jeep dashed against the back-side of the tanker which was parked on the left side of the road. The jeep thrusted into the back-side of the tanker. Mani Ram died at the spot. He and Jaipal Singh received severe injuries. Jaipal Singh died in the hospital. The accident took place on account of the negligence on the pail of the jeep driver. Before the accident, in the way, he and Jaipal Singh asked the driver to drive the jeep at a moderate speed and not in a fast speed but he did not pay any heed to their advice. He has, also, proved the F.I.R. (Ex.P. 1) lodged by him. In the cross-examination, he has admitted that the jeep dashed .against the tanker which was stationary. He has, also, admitted that in order to give side to the truck coming from the opposite side, the driver of the jeep took the jeep on the left side of the road, lost the control over the jeep and the jeep dashed against the tanker which was parked on the left side of the road at some distance. He has, also, admitted that if the driver of the jeep would not have taken the jeep on the left side of the road then the jeep would have dashed against the truck coming from the opposite side. He has, also, admitted that the jeep was being driven at the speed of 70 to 75 KM/H. He has also, stated that near Hansara bridge the jeep was likely to dash against the walls of the bridge but that accident was averted and thereafter he and Jaipal Singh asked the driver of the jeep to drive it with care and caution but he did not pay any heed to their suggestion.
10. From the evidence of this witness it has been established that the jeep was being driven rashly and negligently by its driver Mani Ram. Near Hansara bridge there was a likelihood of an accident which was averted with great difficulty. The driver of the jeep though asked by the fellow passengers Jaipal Singh and Nand Ram. to drive the jeep with care and caution but he did not pay any heed to their suggestion and continued to drive the jeep rashly and negligently and in order to give side to the truck coming from the opposite side, he took the jeep on the left side of the road but lost the control over the jeep on account of fast speed and the jeep thrusted into the rear portion of the tanker parked on the left side of the road at some distance. The accident was, therefore, the result of the rash and negligent driving of the jeep by its driver Mani Ram. From the evidence produced by the claimants it has, therefore, been established that it was only on account of the rash and negligent driving of the jeep by its driver that the accident took place. The learned Judge of the Tribunal has not committed any illegality or error in holding the jeep driver responsible for the accident.
11. The next question which requires consideration is: whether the amount of compensation determined by the learned Judge of the Tribunal is highly excessive as asserted by the appellants or it is an adequate amount of compensation in the facts and circumstances of the case.?
12. The Tribunal has applied the multiplier of ’20’ looking to the age of the deceased. It is not in dispute that deceased Jaipal Singh was-aged about 48 years at the time of his death in the accident and was employed as the Assistant Engineer in Indira Gandhi Nahar Pariyojna. He was getting the salary of Rs. 3048/- per month. The learned Judge of the Tribunal held that out of Rs.3048/-(3050/-) per month, the deceased was paying Rs,2000/-per month to the family members and was spending Rs. 1050/-on himself and applied the multiplier of twenty and determined the loss of dependency at Rs. 3,84,000/’. If the loss of dependency is determined in the light of the judgment of the Supreme Court given in: General Manager, Kerla State Road Transport Corporation v. Smt Susamma Thomas and Anr. and the multiplier method is applied, which is considered to be a most appropriate method by the Apex Court for calculating just compensation, then looking to the age of the deceased and the income which he was derawing, the amount of loss of dependency comes to Rs. 4, 88, 000/-(Rs. 3050 X 2/3 X 2 X 12 X 10) which amount is much more than what has been determined by the learned Judge of the Tribunal and the amount of compensation on this count, awarded by the learned Judge of the Tribunal, cannot be said to be on higher side, rather it is on the lower side. But the amount of compensation under this head cannot be enhanced because neither any appeal nor any cross-objection has been filed by the claimants.
13. The next question which requires consideration is; whether the learned Judge of the Tribunal was right in awarding Rs. 5000/- as the expenses for performance of the social and customary rites on account of death of deceased Jaipal Singh ? The amount under this head spent by the claimants is not the legal expenses incurred by the claimants because such type of ceremonies are prohibited by the law and the claimants, also, failed to prove these expenses. It has been held by a Single Bench of this Court in: Chhagan Ktmwar and Ors. v. Pep Singh and Ors. that “the amount spent towards the expenses incurred in performing the last rites, is not admissible as in the natural death these expenses would, also, have been incurred.” In view of the judgment of this Court in Chhagan Kanwar’s case (supra) the claimants are not entitled for the amount of Rs. 5000/- awarded by the learned Judge of the Tribunal towards social and customary post-death rites.
14. The next question which requires consideration is: whether the learned Judge of the Tribunal was justified in not making deduction of Rs.75,000/- paid to the claimants as ex gratia payment by the State Government ? It is not in dispute that an ex gratia, payment of Rs. 75,000/- was made to the claimants by the State Government. This ex gratia grant was paid under Rule 286-HH of the Rajasthan Service Rules, 1951. Under this rule, “an ex gratia grant shall be admissible to the government servants who die while on duty:
(a) out-side, his normal headquarters;
(b) in an accident;
(c) due to injury intentionally inflicted or caused in consequence of due performance of his official duty;
(d) due to injury intentionally inflicted or caused in consequence of his official position;
(e) by violence attributable to cause related to his service; and
(f) while on duty at his own headquarters or out-side the headquarters in connection with special assignment like ‘election duty’, ‘census work’ or such other assignment which do not form within the normal duty of the post held.
15. This ex-gratia grant under Sub-section (3) of Section 268-HH of the Rajasthan Service Rules, 1951 can be granted to the family members of the deceased after satisfying the following conditions:
(i) that the death of the government servant has taken place while on duty and this fact is not subject to any dispute; and
(ii) in the case of death in the accident while on duty, the death has either taken place on the spot of the accident or during the course of treatment of injuries caused in such accident prior to being declared fit by the authorised Medical Attendant for resumption of duty.
16. The ex-gratia grant paid under Rule 268-HH of the Rajasthan Service Rules, 1951 is not a voluntary payment by the State Government on charitable ground. It is a benefit received by the claimants under the Rules on account of death of Jaipal Singh in the accident while he was on official duty in connection with election duty. It was on account of his death in the accident while on duty that this ex gratia grant under the Rules was paid to the claimants. This benefit accrued to the claimants due to death of Jaipal Singh in the accident during election duty, would not have been available to the claimants without occurrence of the death in the accident while on duty. The amount of ex gratia payment, made by the State Governments is a death- benefit accrued to the claimants on account of the death of Jaipal Singh, in the accident and was paid as per the Rules. The amount paid to the claimants as ex gratia payment is, therefore, liable to be deducted from the assessed compensation amount while determining the compensation. The learned Judge of the Tribunal was, therefore, not justified in not deducting this ex gratia amount of Rs. 75,000/- from the assessed amount of compensation.
17. In: Kashiram Mathur and Ors. v. Sardar Rajendra Singh and Ors. 1983 ACJ 152 the question came-up for consideration before the Full Bench of the Madhya Pradesh High Court was: whether the ex gratia payment made on the death of the employee is deductible from the amount of compensation ? Hon’ble Mr. Justice K.N. Shukla, in His separate judgment held that “payment of ex gratia amount is a condition of the contract of service and it is payable only on the death of the employee., It is not a voluntary payment on the charitable ground “on the occasion of the death” but is an advantage ” by reason of the death.” This amount cannot be claimed by the dependents unless the death of the employee has occurred. This amount was, therefore, deductible from the amount of compensation.” Hon’ble Mr. Justice G.G. Sohani and Hon’ble Mr. Justice R.K. Vijayvargiya, in the separate judgment, agreed with the conclusions reached by Hon’ble Mr. Justice K.N. Shukla and held as under:
In some cases, however, the benefits received by the claimants are directly attributable to the death of the deceased by accident. If these benefits are received from an employer of the deceased, then in that event, the pecuniary advantages may be held to have come to the claimants by reason of death. If, however, those benefits are shown to have been received merely out of a consideration for these claimants, as in the case of contributions by co-workers of the deceased, actuated by a desire to relieve the needs of the widow or orphaned children of the deceased, then in such a case, the claimants cannot be held to have received those benefits, merely by reason of death of the deceased. The source of such benefits can legitimately be traced to considerations personal to the claimants. Lastly, if there is any doubt as to whether the balancing principle extends to any class of benefit not directly covered by any binding authority, the doubt has to be resolved in favour of the claimants in as much as in such a case the defendant must be held to have failed to discharge the burden placed on him to justify such deduction.
Their Lordships further held that:
As pointed out by our learned brother Shukla, J. the defendants in the instant case have failed to make out a case for deduction of any amount other than the amount of ex gratia payment made by the employer of the deceased.
18. In Himachal Road Transport Corporation v. Arvind Singh Mann and Ors. the question, which came-up for consideration before the Division Bench of Himachal Pradesh High Court, was: whether the deduction on account of interim relief paid by the Transport Corporation immediately after the accident, is an admissible deduction or not; and the Division Bench of the Himachal Pradesh High Court held as under:
The amount of ex gratia payment by way of interim relief given by appellant immediately after the accident can be said to be a payment made by a tortfeasor towards the amount of compensation though it is a voluntary payment. It cannot be said to be an amount by way of benevolence. But for the accident, the appellant would not have paid this amount. The appellant is justified in claiming benefit of such a payment, which is made in pursuance to a policy decision taken by its Board of Management.
19. In: Jamila Begun and Ors. v. Raipur Transport Co. Pvt. Ltd., Raipur and Anr. 1986 ACJ 837, the Division Bench of the Madhya Pradesh High Court, in para 30 of the judgment, held that “the amount of Rs. 2568/- received by the claimants as ex gratia payment is to be deducted from the payment which she could be entitled to receive.”
20. In: Pallawan Transport Corporation Ltd. (Metro) v. P. Murthy and Ors. 1989 ACJ 413 the question for consideration before the Division Bench of Madras High Court was “whether the amount of Rs. 10,000/-paid out of the Chief Minster’s Relief Fund as an ex gratia payment to the dependents of the deceased under the Family Benefit Scheme can be deducted from the assessed compensation or not ? The Division Bench of the Madras High Court came to the conclusion that “the ex gratia payment is available with the Family Benefit Scheme. As ex gratia payments are available to all government servants who die while they are in service and this has nothing to do with the accident whereas the compensation to be awarded under the proviso of the Motor Vehicles Act relates to the damages caused on account of the accident.” In this Madras case, the ex gratia payment was made to all the employees of the State Government when they die while in service while under Rule 268-HH of the Rajasthan Service Rules, 1951, the ex gratia grant is admissible under Sub-rule (2) to the family of the government servant who dies while on duty in an accident or under four other circumstances mentioned in the Rules. The ex gratia grant in the present case is payable to the claimants only oh account of death of Jaipal Singh in the accident while on duty in connection with election purposes. The judgment of the Madras High Court, on which reliance has been placed by the learned counsel for the appellant, is not applicable to the facts and circumstances of the present case.
21. In Prabhawali Sharma and Ors. v. Brijmohan Parihar and Ors. the Division Bench of the Madhya Pradesh High Court, relying upon the Full Bench judgment in Kashi Ram Mathur’s case (supra) held as under:
We may still observe on Kashiram Mathur’s case (supra) holding that there has to be established on evidence that the payment was not made on consideration personal to the claimants or that it was made pursuant to any condition of service. No case for deduction of ex gratia payment is made-out in the instant case as nothing has come in evidence in that regard. Two witnesses CW 1 and CW 2 could have been question on that but that was not done.
It was only in the peculiar facts and circumstances of the case as it was not established the nature of ex gratia payment that the Court observed that ex gratia payment cannot be deducted from the assessed amount of compensation. The facts of this case does not throw any light on the controversy in hand and is of no help to the appellants.
22. In: Managing Director, Thanthai Periyar Transport Corporation Ltd. v. Sellamuthu and Ors. the question came-up for consideration before the Single Bench of Madras High Court was whether an amount of Rs. 5,000/- paid as ex gratia payment is liable to be deducted from the assessed compensation ? The learned Single Judge of the Madras High Court held that “the payment made to the appellant on the death of Soramamal was ex gratia and not referable to any claim as such under the provisions of the Motor Vehicles Act and this gratituous payment made should not be’ taken into consideration in assessing the compensation. The amount of Rs. 5000/-paid to the claimant was a gratituous payment made by the company not as a condition of service.” The facts of this case are, also, distinguishable from the facts of the present case and the amount was ordered not to be deducted in the facts and circumstances of that case and as such this case is of no assistance to the present controversy in hand.
23. In: Gauri Bai and Ors. v. Ramesh Kumar and Ors. the Division Bertch of the Madhya Pradesh High Court, without taking into consideration the earlier judgment of the Full Bench of the Madhya Pradesh High Court and the Division Bench judgment and without assigning any reasons why the ex gratia payment should not be deducted from the amount of Compensation assessed, held that the ex gratia payment could not be deducted from the amount payable to the legal representatives of the deceased. The view taken by the Division Bench of the Madhya Pradesh High Court is contrary to the view taken by the Full Bench of the Madhya Pradesh High Court in Kashiram Mathur’s case (supra). No reasons have been given by the Division Bench of the Madhya Pradesh High Court why the ex gratia payment could not be deducted. With respect, I find myself unable to agree with the view expressed by the Division Bench of the Madhya Pradesh High Court.
24. In: Shakuntala Rameshchandra Sant and Ors. v. Rajendra D. Thakkar and Anr. the question came-up for consideration before the Bombay High Court was: whether any deduction on account of ex gratia payment made by the employer of the deceased is admissible for deduction form the assessed compensation ? The Division Bench of the Bombay High Court held that “no benefit of ex gratia payment can be given to the tortfeasor and no deduction can be allowed on this count.” While disallowing the ex gratia payment of Rs. 20,000/- the Division Bench of the Bombay High Court held that “the ex gratia payment made by the company is the payment made having regard to the pitiable condition in which the widow and the children of deceased Rameshchandra have been living consequent to the mishap which took-away their sole bread-earner.” The ex gratia payment made in the case of Shakuntala Rameshchandra Sant was made to’ the heirs as the voluntary payment on charitable ground on the occasion of death. Though this amount arose on account of the death but are voluntary payment on account of charitable ground; while in the present case the ex gratia payment made to the claimants was payable to them under the Rules only on the conditions specified in Rule 268-HH of the Rajasthan Service Rules, 1951 and was payable only on account of death of Jaipal Singh in the accident While he was on duty. The ratio of the judgment of the Bombay High Court is, therefore, not applicable to the present case.
25. The position of law discernable from the judgments referred above is that if the benefit is received by the claimants on account of the death of the person and would not have been available without the occurrence of the death in the accident then the deduction can be made from the assessed compensation; but no deduction can be made for the benefit which are payable as a right on the death. If the benefits are received from the employer of the deceased which are directly attributable to the death of the deceased in the accident then these pecuniary advantage or benefits are the advantage which comes to the claimants for reason of the death. The payment of ex gratia amount under Rule 268-HH of the Rajasthan Service Rules, 1951 is payable on the death of the employee In an accident while in service in certain circumstances mentioned in the rule. This advantage is available to the claimants only on the reason of death in the accident during the service. It is not a voluntary payment on charitable ground made by the State Government. If any payment is made on charitable ground voluntarily by the employer then that amount is not deductable from the assessed compensation.
26. But even if this amount of compensation, though wrongly not deducted by the learned Judge of the Tribunal, as well as the amount of Rs. 5000/- which was wrongly awarded by the learned Judge of the Tribunal on account of the post-death social and customary rites, are deducted from the amount of compensation awarded to the claimants it will not affect the compensation determined by the learned Judge of the Tribunal because the learned Judge of the Tribunal was not justified In deducting the amount of Rs. 96,000/- from the amount of compensation determined by it, on account of lump-sum payment. It has been held by the Supreme Court in: Hardeo Kaw and Ors. v. R.S.R.T.C. and Anr. that “the deduction of 1/3 out of the assessed compensation on account of lump sum payment is not justified.” The Supreme Court further held in this case that “with the value of the rupee dwindling due to high rate of inflation, there is no justification in making deduction on account of lump sum payment.”
27. The Supreme Court In: Prerna and Anr. v. Madhya Pradesh State Road Transport Corporation and Ors. and in Urmilla Pandey and Ors. v. Khalil Ahmed and Ors. reiterated the same view and held that “no deduction can be made on account of the lump sum payment.”
28. The Division Bench of this Court in: R.S.R.T.C. v. Pista Agrawal and Ors. held that “since the benefit of getting lump sum is off-set by the increase in the prices and progressive diecrease in the value of the money; no deduction on account of lump sum payment is to be made.”
29. In view of the authoritative pronouncements of Hon’ble the Supreme Court as well as the Division Bench judgment of this Court, the learned Judge of the Tribunal was not justified in making deduction of Rs. 96,000/- i.e., 20% of the amount of assessed compensation, on account of lump-sum payment and this amount of Rs. 96,000/- was thus, wrongly deducted by the Tribunal while determining the amount of compensation. The learned Judge of the Tribunal has held this amount inadmissible though it was otherwise legally admissible. Though the claimants were entitled for the amount, of Rs. 96,000/- which was wrongly deducted on account of lump sum payment but since no appeal or cross- objection has been filed by the claimants. I, therefore, do not think it proper to interfere in the judgment passed by the learned Judge of the Tribunal and the amount of compensation cannot be enhanced. Thus, even if the amounts of Rs. 75,000/- which was paid to the claimants as ex gratia payment under Rule 268-HH of the Rajasthan Service Rules, 1951 and the amount of Rs. 5000/- awarded to the claimants on account of post-death social and customary rites expenses, are deducted from the amount of compensation, the amount of compensation determined by the learned Judge of the Tribunal will not be changed. In order to do justice, the amount of Rs. 75,000/- as well as the amount of Rs. 5000/- aforesaid, also, cannot be slashed from the compensation awarded because the higher amount of Rs. 96000/- has already been wrongly deducted by the Tribunal on account of lump-sum payment. I, therefore, restore the amount by changing the head under which it Is payable.
30. In this view of the matter, I do not find any merit in this appeal and the same is hereby dismissed.