ORDER
A.K. Mishra, J.
1. Deceased Ramesh was working as labourer in Truck bearing registration No. CPQ 3943. He was travelling in the said truck when another truck bearing No. CPQ 7398 came from behind. The truck belonging to M.P.E.B. in which the deceased was travelling gave the side. While overtaking, the two trucks collided due to which Truck No. CPQ 3943 turned turtle and Ramesh died in the said accident.
2. The truck owned by M.P.E.B. bearing No. 3943 was insured with Oriental Insurance Company and was driven by Krishna Kumar. Truck No. 7398 was driven by Jagdish Prasad and the said truck was insured with New India Assurance Company. The claimant, widow of Ramesh, prayed for an award of Rs. 2,50,000/- on account of death of Ramesh, her husband. The owner of Truck No. CPQ 7398 denied the accident. The truck was insured with New India Assurance Company for the period 4-4-89 to 25-11-89, hence it was submitted on behalf of the insurance company that it was not liable to pay any compensation to the claimant.
3. The M.P. Electricity Board and the driver of its truck took the plea that the other Truck No. CPQ 7398 was being driven in rash and negligent manner and without any indication all of a sudden the truck was stopped due to which Truck No. 3943 met with the accident. In the said truck employees of M.P.E.B. were coming back from Area Store, Sagar. Side was given by M.P.E.B. truck to the other truck. Thereafter the said truck after overtaking stopped all of a sudden after some distance without any signal due to which M.P.E.B. truck had to be taken to the right side on account of which it slipped and fell in a ditch.
4. The insurer of the M.P.E.B. truck took the plea that it was not liable for 3rd party because it was not having third party insurance. The insurance company i.e. New India Assurance Company also filed its reply and contended that Khemchand was not, but Jagdish Prasad Awasthy was the insured owner. Ramesh was travelling in the truck of M.P.E.B. and hence no liability could be fastened on it.
5. The Oriental Insurance Company with whom the M.P.E.B. truck was admittedly insured took the plea that it was not liable for the passenger even though may be travelling in the truck. The accident took place on 1-5-1989 whereas the premium was paid on 16-5-89, hence it was not liable to pay.
6. The Claims Tribunal has found that the accident occurred due to the negligence of the driver of M.P.E.B. truck. Driver Krishnakumar was negligent and there was no negligence of Truck No. CPQ 7398. The Tribunal determined the award in the sum of Rs. 55,000/- with respect to death of Ramesh by way of compensation. It was held that M.P.E.B. and Oriental Insurance Company are liable to pay the amount. New India Assurance Company and Khemchand were excluded from any liability.
7. This appeal has been filed by the claimant for enhancement of the compensation. It may be seen that the Claims Tribunal has held that Rs. 40,000/- have been paid by M.P.E.B. to the claimant on account of death of Ramesh. The Tribunal assessed the income of the deceased at Rs. 300/- per month and dependency was arrived at Rs. 200/- taking that 1/3rd amount the deceased would have spent on himself. Thus the annual dependency was worked out at Rs. 2400/-. A multiplier of 16 was applied as the deceased was aged 22 years at the time of accident. Thus, the total loss of dependency arrived at was Rs. 38,400/-. The Tribunal has further held that an amount of Rs. 40,000/- was paid by M.P.E.B. on account of service benefits on death of Ramesh out of which Rs. 4000/- was ex-gratia amount. The Tribunal has further found that since interim compensation in the sum of Rs. 15,000/- was awarded, the claimant has received a total sum of Rs. 55,000/-. Besides dependency of Rs. 38,400/- a sum of Rs. 10,000/- was awarded on account of loss of consortium. For mental pain and suffering Rs. 6,600/- were awarded. The Tribunal ultimately calculated the total amount of compensation as follows : loss of earning Rs. 38,400/-; loss of consortium Rs. 10,000/-; physical and mental pain and suffering Rs. 6,600/-, total Rs. 55,000/-. Since the claimant had already received Rs. 40,000/- from M.P.E.B. and another amount of Rs. 15,000/- was received as interim compensation, the total amount received by the claimant comes to Rs. 55,000/-. Thus it was held that the claimant is not entitled to any further amount. The fact was also taken into account that she was given compassionate appointment by M.P.E.B. and, therefore, she was not entitled to any interest on the said amount.
8. The questions which arise for consideration in this appeal are– (1) whether the dependency which has been arrived at by the Claims Tribunal is proper ? (2) whether the amount paid by M.P.E.B. on account of service claims could be deducted from the award of compensation ? and (3) whether the interest could be withheld as claimant was given an employment on compassionate ground ?
9. The third ground is being taken up first. The offer of compassionate appointment has absolutely nothing to do with compensation payable on the death of Rameshkumar. Even though, if an employee dies during service, his heir may be offered an employment, but that can be no ground to disentitle the family of the deceased for compensation under the Motor Vehicles Act. Employment on compassionate ground cannot be substitute for the compensation on the death of a person who was in service. The compensation is awarded by the Tribunal on account of loss of earning by the death of the deceased, which the deceased would have earned by his own efforts, not by the efforts of the claimant. If an employment has been offered to the widow, as in the present case, the widow is earning by rendering her own skill and service and the payment of salary is in lieu of the work rendered by her and not in lieu of the work which would have been done or performed by the deceased or what the deceased would have contributed to his family. Thus, an earning made by one’s own effort by a claimant on being offered compassionate appointment cannot be made a ground to deduct the amount of interest. Thus, the Tribunal has acted wholly arbitrarily in not granting the interest on the award and in refusing it.
10. It may further be seen that the dependency which has been arrived at, has totally failed to take into account, income of the deceased properly. The Tribunal has completely lost sight of the future prospects and the increase in the wages which had taken place immediately before passing the award, in the amount of daily wages employees. It may be seen that the deceased was aged 22 years only at the time of his death. He was employed in the M.P.E.B. Uma Sahu, the claimant, has clearly deposed that Ramesh Kumar’s salary was Rs. 550/-. He was working as labourer. She further deposed that the entire salary used to be given to her by her husband and both were spending about Rs. 400-500. Tulsiram was examined as Claimant Witness No. 3. He is an employee of M.P.E.B. He deposed that a daily wage employee used to get around Rs. 300/- per month. Krishnakumar was examined as N.A.W. No. 1. He has not deposed anything as to what was the wage paid to a daily wage employee. The M.P.E.B. has not examined any witness.
11. Thus, salary of the deceased can be taken approximately as Rs. 550/-per month. A sum of Rs. 150/- out of the amount of salary the deceased would have spent on himself. Thus, the annual dependency of the claimant comes to 400 x 12 = Rs. 4800/- and the multiplier of 16 is to be applied. A sum of Rs. 5000/- is awarded on account of funeral expenses and Rs. 5000/- on account of loss of consortium. Thus, the total sum payable comes to Rs. 86,800/-(400 x 12 x 16 = 76,800/- + 10,000/- = Rs. 86,800/-).
12. The trial Court had deducted the amount of Rs. 40,000/- from the amount of compensation. A sum of Rs. 4000/- was granted by the M.P.E.B. as per its written statement, on account of ex-gratia and a sum of Rs. 35,995/- on account of other service benefits owing to death.
13. The question which arises for consideration is whether the service benefits granted by the employer to the widow of the deceased could be deducted from the amount of compensation payable under the Motor Vehicles Act. Question also arises whether the ex-gratia payment of Rs. 4000/- could also be ordered to be deducted from the payment of compensation. This question was considered by a Division Bench of this Court in State of M.P. v. Ashadevi (AIR 1989 MP 93). In the said decision it was held that ex-gratia payment could be deducted in view of the decision of the Full Bench of this Court reported in AIR 1983 MP 24 (Kashmiran Mathur v. Sardar Rajendra Singh). However, it was held that family pension given under Parivar Kalyan Yojna and Paropkar Nidhi could not be deducted.
14. This question was further considered by this Court in the case of Union of India v. Smt. Vijay Sundari (AIR 1991 MP 328) where the Division Bench of this Court had observed that family pension could not be deducted from the amount of compensation. The single Judge of Delhi High Court in the case of Dharam Singh v. Parveen Sehgal (AIR 1992 Delhi 347) has also taken the view that amount received on account of gratuity, pension, provident fund and insurance money could not be deducted. It was observed that these benefits cannot be considered as death benefits but were the benefits which the legal representative was entitled even otherwise on the retirement of the deceased. In another case in Bullan and Anr. v. Jasmer Kaur (1997 ACJ 940) the learned Single Judge of the Delhi High Court held that lump sum payment, family pension, P.P. and gratuity are not deductable from the amount of compensation. It may further be seen that in N. Sivammal and Ors. v. Managing Director, Pandyan Roadways Corporation (1985 ACJ 75) the Supreme Court has held that deduction on account of pensionary benefits and the pension received by the claimant are not deductible. Division Bench of the Bombay High Court in Puransingh Fattesingh Osahan v. Murlilal Chandiram Pinjani (1997 ACJ 1335) held that deductions on account of share of the widow, provident fund, service fund, bank account, etc. are not permissible. The Karnataka High Court in the case of M.G. Rukmini and Ors. v. Managing Director, Shankar Transport Co. (1997 ACJ 22) has held that a benefit which was pre-existent cannot be said to arise out of the death. What pre-existed and merely passed on the death cannot be said to arise out of the death. No deduction could be made even for the acceleration of the devolution of interest. Deductions made from the amount of compensation on account of L.I.C. and gratuity of the deceased was held to be bad in law. In the case of Mishri Devi and Ors. v. New India Assurance Co. Ltd. and Ors. (1998 ACJ 665) the Delhi High Court has disallowed deductions on account of provident fund, pension, etc. In the case of M.P. Electricity Board v. Ram Mohan Shrivastava (1998 ACJ 651) Division Bench of this Court has disallowed deduction on account of family pension as there was no evidence produced by the M.P.E.B. to indicate that the family pension was contributory or non-contributory. In the present case, there is no material on record to show that the M.P.E.B. was entitled to deduct the amount already paid. Thus it is held that the amount of Rs. 35,995/- of service benefits which was paid to the claimant as widow of the deceased was not liable to be deducted from the compensation payable to her. However, in view of the Full Bench decision of this Court in Kashmiran Mathur (supra) the amount of Rs. 4000/- paid towards ‘ex-gratia’ is liable to be deducted from the amount of compensation payable to the claimant i.e. Rs. 86,800/-. Thus, a total sum of Rs. 82,800/- is awarded to the claimant as compensation.
15. In the result, the appeal is allowed. It is held that the appellant is entitled to compensation of Rs. 82,800/- over and above the amount already paid by M.P.E.B. on account of service benefits owing to death. The respondent No. 2 M.P.E.B. and respondent No. 6 Insurance Company are held jointly and severally liable to pay the said amount. The amount shall carry interest at the rate of 12% per annum from the date of application. The amount together with interest shall be paid to the claimant within three months from the date of this order. In the circumstances, however, there shall be no order as to costs.