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Smt. Nirmala Sharma, Etc. Vs. Raja Ram - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtDelhi High Court
Decided On
Case NumberFAO. 289/1980
Judge
Reported inAIR1982Delhi233; 21(1982)DLT87; ILR1982Delhi75
ActsMotor Vehicles Act, 1939 - Sections 110 and 110A; Motor Vehicles Regulations - Regulation 6
AppellantSmt. Nirmala Sharma, Etc.
RespondentRaja Ram
Appellant Advocate O.P. Goyal, Adv
Respondent Advocate H.S. Dhir and ; Anil Sachthey, Advs.
DispositionAppeal accepted
Cases Referred(Shri Ish Kumar and Ors. v. Bhagwanti and Ors.
Excerpt:
motor vehicles act, 1939 - section 110--compensasion for death--average life expectancy--no deductions on account of gratuity, pension, provident fund, life insurance or lumpsum payment--salary of heir who joined service not to be considered or deducted from the amount of compensation. ;a dtc bus hit a motor cyclist, who died on the spot. the mother, widow and his three children under section 110-a of the motor vehicles act claimed rupees two lacs as compensation. the motor accident claims tribunal held that the deceased and the driver of the vehicle were equally negligent and calculating compensation for 20 years and deducting 1 3rd of life insurance money and 10 per cent for lumpsum payment, gave an award for rs. 42,300 in favor of the appellants. both parties preferred appeals. the.....sultan singh, j.1. this appeal under section 110d of the motor vehicles. act, 1939 (hereinafter called 'the act') is directed against the judgment and award of the motor accident claims tribunal, delhi dated 28th march, 1980 by which the tribunal awarded a sum of rs. 42,300 with costs to the appellants against the respondents who were granted two months time to deposit the amount otherwise the appellants were held entitled to 6 per cent interest from the date of the filing of the petition till realisation.2. the appellants filed this appeal for enhancement of compensation while the respondents filed another appeal fao no. 202 of 1980 claiming the dismissal of the claim petition. the delhi transport corporation, respondent no: 2, runs buses in the union territory of delhi. one of its buses.....
Judgment:

Sultan Singh, J.

1. This appeal under Section 110D of the Motor Vehicles. Act, 1939 (hereinafter called 'the Act') is directed against the judgment and award of the Motor Accident claims Tribunal, Delhi dated 28th March, 1980 by which the Tribunal awarded a sum of Rs. 42,300 with costs to the appellants against the respondents who were granted two months time to deposit the amount otherwise the appellants were held entitled to 6 per cent interest from the date of the filing of the petition till realisation.

2. The appellants filed this appeal for enhancement of compensation while the respondents filed another appeal FAO No. 202 of 1980 claiming the dismissal of the claim petition. The Delhi Transport Corporation, respondent No: 2, runs buses in the Union Territory of Delhi. One of its buses DLP 1715 driven by Raja Ram, driver-respondent No. 1 met with an accident on 22nd July, 1972 on Nullah Market, near Community Hall, West Patel Nagar, New Delhi as a result of which Satish Chander Sharma sustained injuries and died on the spot Smt. Nirmala Sharma (appellant No. 1) his widow, Baby Sandhya, (appellant No. 2) his daughter, Master Ajay Kumar and Arun Kumar (appellants No. 3 and 4) his sons and Smt. Sushila Devi, his mother on 23rd December, 1972 filled a petition under Section 110A of the Act claiming compensation of Rs. 2 lacs alleging that on 22nd July, 1972 at about 2 P.M. Satish Chander Sharma was going on his motor cycle 'DLQ' 2838 as a normal speed on his proper side on the Nullah Market, near Community Hall, West Patel Nagar, New Delhi, that he had covered a large part of the crossing when the offending bus DLP 1715 owned by respondent No. 2 and driven by respondent No. 1 corning at a very high speed, knocked him down and dragged him for a long distance as s result of which he suffered fatal injuries and died on the spot.

3. The respondent's denied that the accident took place on account of rash and negligent driving of the bus by the driver, respondent No. 1. They also denied that the bus was running at excessive speed or that it knocked him down along with his Motor cycle or that he was dragged into a long distance. The driver's version as pleaded in the written statement is that the bus DLP 1715 on 22nd July, 1972 at 13.55 hrs. was proceeding from West Patel Nagar to Shadipur Depot on Route No. 4-B, that when the bus reached the intersection of Block No. 25/26 and Marg 9 near the Community Hall and before entering the intersection, he had blown horns and was driving at a slow speed and that all of a sudden the deceased who was driving a motor cycle DLQ 2838 at a rash speed emerged from Block No. 25 side i.e. from the left side of the bus and tried to pass ahead of the bus from going towards Block No. 26, that as a result of this impact, he struck against the front left corner of the bus and received injuries. The driver further pleaded that on sudden appearance of the motor cyclist he applied brakes but because of the short distance between the bus and the motor cycle the accident became inevitable and that the accident was wholly due to the negligence of the deceased.

4. The Tribunal held that the accident was the result of composite negligence of both the driver Raja Ram and deceased Satish Chander Sharma and both were equally negligent i.e. 50. 50. The appellants i.e. the widow and three minor children were held to be the heirs and legal representatives of the deceased. The mother of the deceased Smt. Sushila Devi had died during the pendency of the proceedings before the Tribunal and her name was deleted. The Tribunal further held that the dependency of the appellants on the deceased was Rs. 450 per month. The compensation was calculated for 20 years. No deduction on account of family pension, gratuity or provident fund of the deceased was made. A deduction of Rs. 7000 on account of 1/3rd of life insurance money was however made beside 10 per cent deduction on account of lumpsum payment. Thus a sum of Rs. 42,300 was determined as the compensation payable to the appellants,

5. Learned counsel for the appellants contends that the deceased was not negligent at all, that the bus driver was solely responsible for the accident and the death of Satish Chander Sharma on account of rash and negligent driving, that the Tribunal erred in making deduction on account of life insurance money as the said payment is benefit to which the legal representatives were entitled on the maturity of the insurance policy, that the deduction on account of lumpsum payment was not justified, that the appellants are entitled to Rs. 2 lacs as compensation with interest at 12 per cent per annum from the date of filing of the claim petition till realisation. Learned counsel for the respondents, who have filed FAO No. 202 of 1980, on the other hand submits that the deceased was negligent and hence the appellants were not entitled to claim any compensation that in any case the Tribunal rightly held that the deceased and the driver were equally negligent, that the Tribunal ought to have made deductions on account of gratuity, pension and provident fund from the amount of compensation. The questions recurring determination in these two appeals are as follows:

1. Whether the driver or the deceased was negligent If both, how the liability should be apportioned ?

2. What should be the amount of compensation ?

3. Whether any deduction on account of gratuity, pension, provident fund, life insurance money or lump sum payment should be made from the amount of compensation ?

4. What should be the rate of interest ?

6. The first question for determination is who was negligent and responsible for this accident The eye witnesses were PW8 Suraj Parkash, P.W.9 Ranjit Rai and P.W. 12 Raghunath Sahal Suraj Parkash PW 8 has deposed that he witnessed the accident on 22nd July, 1972 at the crossing of Mullah Market and Community Hall near Block No. 26, that motor cyclist was hit by DTC bus, that' he was coming from Nullah Market side and was going towards Community Hall side, Block No. 26 at a slow speed, and when he had entered the crossing the bus at that time was at a distance of 20 to 25 paces, on his right side road, that the front bumper of the bus hit against the right side of the rear wheel of the motor cycle, that the bus dragged him and his motor cycle for some distance and then stopped, that he did not hear any horn by the bus, which was running at a very fast speed, that the motor cyclist died at the spot due to this accident, that police reached the spot and his statement was recorded. In cross-examination he has said that he was standing at the Nullah Market Bus stand, that the width of the roads on which the bus and the motor cyclist were going was equal and it may be 20-25 paces, that there was no diversion on the road, that the deceased was just in the centre of the crossing when the accident took place, that he was at a distance of about 20 to 25 yards from the place of the accident, that the front centre of the bumper of the bus came in contract with the motor cycle, that the bus did not run over the deceased, that a site plan was prepared in his presence. Ranjit Rai PW 9 has stated that on the day of the accident on. 22nd July, 1972 the motor cycle was in the centre of the crossing when the accident had taken place, that the bus was coming at a fast speed and the motor cycle was going at a slow speed, no horn was given by the bus before entering the crossing, that the motor cyclist died at the spot, that his statement was recorded by the police, that the bus struck against the right side of the rear wheel of the motor cycle, that photographs were taken on the spot. In cross-examination he has deposed that he had been running a ration shop in the Nullah Market situated at a distance of 10 shops, from the place of accident, that at the time of accident he was coming from his house situated in Block No. 29 West Patel Nagar and going to his shop situate in between Blocks 25, 26 and 32 and 34 that there were 5--7 passengers in the bus at the time of accident, that the bus was at a distance of 10 paces before the centre of the crossing, that the motor cycle was dragged up to a distance of 10 paces and then stopped with the stoppage of the bus, that the bus was coming from the right side of the Motor Cyclist, that he telephoned the Flying Squad and the police reached, that is statement was recorded at the spot and a site plan was prepared in his presence. He denied that he had not witnessed the accident. Raghunath Sahai, P.W. 12 has deposed that he had a Dry-cleaning shop in East Patel Nagar, New Delhi that he was standing near the Nullah Market on the date of the accident, that the motor cycle had gone into the crossing one or two paces when the front side of the bus hit the rear wheel of the motor cycle which was dragged up to 10--15 paces, that the speed of the motor cycle was slow while the speed of the bus was fast, that the motor cyclist died on the spot and that the motor cyclist had first reached the crossing. In cross-examination he has deposed that he was illiterate that he had not kept any diary, that he orally remembered the number of the bus, that the bus was on the main road, that the motor cyclist was 10 paces from him when he sighted him for the first time, that the distance between the motor cycle and the bus was 15 paces when he saw them. Ram Chander, PW7 is the Sub Inspector of Moti Nagar Police Station, New Delhi who prepared the site plan, copy of which is Ex. PW7/A. He reached the spot and found the bus, the motor cycle and the dead body. He recorded the statement of eye witnesses and took possession of both the vehicles and arrested the driver at the spot. In cross-examination he has deposed that the accident did not take place on the main road, that there was no main road, that the road was not in Zig-Zag form, that the width of the road is about 12 paces and there are residential quarters at both the sides of the road, that the road on which the motor cycle was going does not bear any name, that the bus came from the right side of the motor cycle, that the site plan was prepared on the pointing out of the witnesses Suraj Parkash, Ranjit Rai and Subhash Chander. He has further deposed that there were skid marks of the bus on the road up to distance of 20 paces, that the skid marks were found 10 paces before and 10 paces after the place of the impact. From the site plan it is clear that the accident had taken place just in the centre of the crossing. The Sub-Inspector has given various notes on the site plan. He has mentioned that there were skid marks of the bus on the road up to a distance of 20 paces from the back of the bus and that the point of accident was 10 paces away from the place where the bus stopped. The plan shows the width of the two roads on which the motor cycle and the bus were moving as 12 paces. Hoshiar Singh, PW 6 Asstt. Sub-Inspector had taken various photographs of the accident site. These are Exhibits PW 6/1 to PW 6/10. The photographs Ex. PW 6/5 shows the dead body and the motor cycle lying just in front of the bus, and that the motor cycle was on the extreme towards the front right portion of the bus. On behalf of the respondents there is statement of the driver Raja Ram RW 2. The factum of accident is not denied by him. He has deposed that the motor cycle came at a fast speed from the left side lane and struck against front left side of the bus and the cyclist fell before the bus, that the bus stopped then and there and the head of the motor cyclist struck against the road, that, his statement was recorded. In cross-examination he has deposed that the road on which the bus was moving was wider than the road on which the motor cyclist was coming and that there are industrial quarters and houses on both sides of the road. He denied the suggestion that the width of the two roads was the same. He has further deposed that the bus did not suffer any damage. He admitted that the motor cyclist was bleeding. He denied that the motor cyclist was dragged by the bus, he said, that the bus was stopped on the crossing and it did not go out of the crossing. He was emphatic that the motor cyclist was not dragged even an inch. He denied the existence of tyre marks of the bus on the road. He has also denied that he was driving the bus at a fast speed and that he hit the motor cyclist at the crossing who was already there and dragged him for 25-30 feet. Dr. Bharat Singh, PW 5 the police Surgeon conducted the postmortem and he deposed about various injuries found on the body of the deceased. Ram Kishan, PW 10 has deposed about the damage found on the body of the bus and the motor cycle.

7. Statement of the driver Raja Ram does not inspire any confidence. His statement is full of lies. From the site plan and the statement of the eye witnesses it is clear that the motor cycle and the cyclist were dragged up to a considerable distance that there were skid marks on the road which according to the Sub-Inspector were up to 20 paces from the back of the bus. One pace is equal to 30 inches. Thus there were skid marks of the bus tyres up to a distance of 50 feet. There were skid marks up to a distance of 25 feet before the place of accident and 25 feet' thereafter. The driver has said that the bus stopped then and there and that there were no skid marks on the road. He has said that the bus did not go out of the crossing. This statement on the face of it is false in view of other evidence. The bus and the motor cycle suffered various damage on the body as deposed by P.W. 10 but the driver said that there was no damage. No witness has suggested that there were skid marks on the road on which the motor cycle was going meaning thereby that the motor cyclist had not applied brakes as he was going at a normal speed. From the evidence of the various eye witnesses the site plan and the photographs it is apparent that the motor cyclist had crossed the centre of the crossing when he was hit by the bus and dragged. As already stated, the bus stopped after moving about 25 feet from the place of the accident while the body was lying in front of the bus. It is admitted at the bar that the length of the bus in question is 30 feet and its width is 8 feet. Thus it must be held that the deceased was dragged for a distance of 55 feet from the point of accident. The skid marks on the road for a distance of 50 feet suggest that the bus was going at an excessive speed. The width of the road is 30 feet. The driver applied the brakes but still the bus ran about 25 feet knocked down the motor cyclist and dragged him 55 feet on the road. These facts suggest that the bus driver was unmindful of the crossing when he saw the motor cyclist, he applied brakes but he could not stop the bus. In other words the bus was not under the complete control of the driver while approaching the crossing. He could not stop the bus within a distance of 25 feet to avoid the accident. The Tribunal has held that the accident was the result of the composite negligence of the deceased and the driver but no evidence on record, to suggest any negligence on the part of the motor cyclist deceased, has been pointed out. He was going at a normal speed. He entered into the crossing when the bus according to the eye witnesses was at a long distance. On the other hand, the driver of the bus did not slow down although he new that he was approaching the intersection of the two roads and the bus was running at an excessive speed. He applied brakes only at a distance of 25 feet, from the place of accident. He noticed the motor cyclist but he could not stop the bus. Stopping of the bus after the application of the brakes at a distance of 50 feet means that the speed of the bus might be 50 k.m. per hour or more. In Bingham's Motor Claims Cases, 8th edition page 112 appropriate minimum stopping distances of the vehicles have been shown. It is mentioned that if the vehicle stopped at a distance of about 60 feet on dry smooth concrete road after application of the brakes, the speed of the vehicle would have been 40 miles per hour. Thus when the bus travelled 50 feet after applying brakes then it must have been running at a speed of about 50 k.m. per hour which is very excessive while approaching the crossing. Learned counsel for the appellants further submits that the front wheel of the bus travelled 55 feet after the impact and the deceased was also dragged about 55 feet. I have thus no doubt that the bus was running at an excessive speed even while approaching the crossing. Driving regulations under Sections 77 and 78 of the Motor Vehicles Act, 1939 are contained in the Tenth Schedule to the said Act. Regulations 6 and 7 read as under :

'6. The driver of a motor vehicle shall slow down when approaching a road intersection, a road junction or a road corner, and shall not enter any such intersection or junction until he has become aware that he may do so without endangering the safety of persons thereon.

7. The driver of a motor vehicle shall on entering a road intersection, if the road entered is a main road designated as such, give way to the vehicles proceeding along that road, and in any other case give way to all traffic approaching the intersection on his right hand.'

Under Regulation 6 the bus driver was supposed to slow down the vehicle when he was approaching the intersection and that he ought to have entered only if he had satisfied himself that there was no danger to the life of the persons when the motor cyclist reached the crossing he must have seen the bus at a long distance. He had gone in the middle of the crossing considering that he could pass the crossing when the bus was at a long distance but may be that he could not estimate the speed of the bus. The motor cyclist must have slowed down and after observing the traffic on both sides he entered the crossing and reached its centre but was suddenly hit by the bus. The driver has not deposed, under what circumstances the accident took place; at what moment he noticed the motor cyclist and applied the brakes, at what speed the bus was moving when he noticed the motor cyclist. Counsel for the Respondents on the other hand relying upon Regulation 7 of the Tenth Schedule submits that the bus was approaching intersection on the right hand side of the motor cyclist and thereforee the motor cyclist ought to have given way to the bus. There is no dispute about this regulation but the question is whether the motor cyclist should stop even when the bus was at a far away distance. Under Regulation 6 it is the duty of the driver of both the vehicles to slow down their vehicles and to pass through the crossing after making sure that there was no danger to the safety of the persons. The negligence of the motor cyclist has not been proved. It must be held that the bus driver while deriving the bus was rush and negligent without caring for the Regulation No. 6 of the Tenth Schedule to the Act and that he alone was responsible for the accident. The circumstances in the present ease speak themselves and it was the duty of the driver to prove that he was not negligent as has been observed in Subhash Chander v. Ram Singh and Ors., 1972 ACT 58. Further as between the cyclist and the bus driver, the latter's responsibility is greater as has been held in General Manager, Bangalore Transport Service v. N. Narsimhiah and Ors., 1976 ACJ 379. In Gobald Motor Service Ltd. and an Ors. v. B.M.K. Valuswami and Ors., 1962 SC 1 the accident took place not on the main road, but on the off-side, uprooting the stone at the drain and attacking a tamarind tree 25 feet away from the said stone with such a velocity that its bark was peeled off and the bus could stop only after traveling some more distance from the said tree. It was held that the accident was caused by the negligence of the driver. Further skid marks at a distance of 50 feet on the road are evidence of negligence. Had the driver been careful he would have stopped the bus within the distance of 25 feet after applying the brakes. The evidence on record prove that the bus moved 25 feet after the application of the brakes that it knocked the cyclist and dragged him about 55 feet. The locality is a residential locality. The roads are not the main roads but are in a residential locality and the width is only 30 feet. It is submitted by the learned counsel for the respondents that the driver was acquitted in the criminal case. It is true that he was convicted by the trial court and acquitted in appeal, but the Supreme Court in N. K. V. Bros (P) Ltd. v. M. Karamai Ansal and Ors., 1980 ACJ 435 has held that the acquittal in the criminal case has no bearing. Thus I hold that respondent No. 1 was driving in a rush and negligent manner and that he alone is responsible for the accident, that he was driving the but in the course of his employment under respondent No. 2.

8. The next question is : What should be the amount of compensation payable to the appellants The Tribunal has awarded compensation on the basis that the deceased would have lived for 20 years only i.e. up to the date of superannuation. He was aged 33 years on the date of accident. In Gobald Motor Services Ltd. and another (Supra) it has been held that in calculating the pecuniary loss to the dependents many imponderables enter into the calculation and, thereforee, the actual extent of pecuniary loss to the dependents may depend upon data which cannot be ascertained accurately, but must necessarily be an estimate or even partly a conjecture. The general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which front whatever source comes to them by reason of the death, i.e. the balance of loss and gain to a dependent by the death must be ascertained. There is unrebutted evidence that the deceased possessed good physique at the time of accident. The Tribunal has taken the expectancy of the life of the deceased at 58 years which is not correct. The average life expectancy in India is 65 to 70 years. [See : Krishanamma v. Alice Veigas and Anr., 1966 ACJ 366, Madhya Pradesh State Road Transport Corporation, Bhopal and Anr. v. Smt. Nunnabai and Ors., 1967 ACJ 214. Shiv Prasad Gupta v. S.M. Sabir Zafdi, 1967 ACJ 321. Mrs. Savitri Devi and Anr. v. The Malerkotla Bus Service (P) Ltd. and Ors., 1969 ACJ 173, Randall v. Motor Insurance Bureau, 1969 ACJ 193, and T. V. Gunnavelu and Anr. v. D. P. Kannayya and Ors., 1969 ACJ. 435. The Supreme Court in Mrs. Majushri Raha and Ors. v. S.L. Gupta and Ors., 1977 ACJ 134 has observed that in the present economic conditions the life of an average Indian has increased and thereforee it is reasonable to expect that if the deceased had not died due to accident, he would have lived up at least up to the age of 65 years, if not more, so as to earn the pensionary benefits for 10 years after retirement. J would accordingly take the life expectancy of the deceased as 65 years. In other words, I am of the view that the deceased would have lived for at least 7 years after retirement and earned pensionary benefits.

9. The deceased was Superintendent in the Delhi Electric Supply Undertaking drawing salary in the scale of Rs. 400-25-525-30-645-30-680-EB-35-750. In 1972 his basic salary was Rs. 475 besides other allowances. He would have drawn the maximum of the said scale in the year 1981. In other words he would have drawn Rs. 750 as basic pay besides other allowances with effect from 23rd January, 1981. The yearly increment was due every year on 23rd January. His total emoluments at the time of the accident were Rs. 815.85 paise and Rs. 85 as technical allowance i.e. Rs. 900 per month. The deceased was also getting every year one month's pay ex gratia, as bonus. He was to retire after attaining the age of 58 years i.e. on 31st December, 1991. It is also in evidence that at the time of retirement deceased would have been getting Rs. 1356.20 per month after deduction of provident fund of Rs. 97. Ho would have got the maximum rate of pay and allowance Rs. 1350.20 from 23rd January, 1981 to December, 1991. It is also in evidence that the deceased would have got the pension @ Rs. 475 per month after retirement. Thus it has to be determined what amount of pay and allowances and pension the deceased should have drawn from the date of accident till attaining the age of 65 years. This amount would be Rs. 3,08,892.00 as detailed below:

(a)pay and allowances at Rs. 900/- per monthfrom September, 1972 to December, 1980 i.e. 100 months at Rs.900/- per month90,000(b)pay and allowances at Rs. 1356.00per month from January, 1981 to December, 19811,78,992.00(c)pension from January, 1992 to December, 1998-7years @ Rs. 475/- p.m/39,900.00 3,08,892.00

The deceased would have further drawn pay on account of annual increment of Rs. 25, Rs. 30 or Rs. 35 besides allowances during the period from 1972 to 1980.

10. The Tribunal has held that the appellants dependency upon the deceased was Rs. 450 per month out of his income of Rs. 900 per month. The widow appellant has deposed that she was being paid Rs. 800 to Rs. 900 per month by the deceased for household expenses. She has further deposed that her husband used to take meals at home and he was not spending a single paise on himself, that he was maintaining a motor cycle and was well dressed. This is unrebutted statement of the widow. The deceased was contributing towards provident fund, and life insurance policy premium for the policy of Rs. 10,000. Thus J am of the view that the Tribunal was not correct in holding that the dependency of the appellants upon the deceased was only 50 per cent i.e. Rs. 450 per month. I would hold that the appellants were dependent to the extent of Rs. 675 per month i.e. the deceased was spending 25 per cent of his income on himself and the balance on his family consisting of his wife, three children and a mother. The mother is already dead now. Thus taking 75 per cent of the total amount what the deceased would have got as the dependency of the appellants, their pecuniary loss from the date of the accident till the attainment of the age of 65 years would be Rs. 2,31,669. In other words, a sum of Rs. 2,31,669 would be pecuniary loss to the appellants on account of the death of the deceased in the unfortunate accident. In Mrs. Manjushri Raha and others (Supra) the deceased was aged 37 years. He was earning Rs. 620 per months and he left behind a widow and children. The deceased was drawing the salary in the scale of Rs. 590--900. After taking into consideration all the circumstances of the case the Supreme Court determined that the deceased would have lived up to the age of 65 years if not more and determined the compensation of Rs. one lac. The claim of the appellants is only to the extent of Rs. two lacs. It is thereforee held that the appellants are entitled to compensation to the extent of Rs. two lacs.

11. The appellants are also entitled to interest under Section 100CC of the Act. The accident took place in 1972 and nothing hag been paid to them on account of the stay granted by this court. The Tribunal has granted 6 per cent. interest which is not reasonable in view of the present economic conditions and the Bank rate of interest. The reasonable rate of interest would be 9 per cent per annum.

12. The last question is whether deduction on account of gratuity, pension, provident fund, life insurance or lumpsum payment should be made. The Tribunal has deducted a sum of Rs. 7,000 from the total compensation on account of 13th of life insurance money. In Bhagwanti Devi and Ors. v. Ish Kumar and Ors. 1975 ACJ 56, H.L. Anand, J, considered the question in grant detail and after referring to various authorities on the subject concluded that no deductions should be made from the compensation on account of gratuity, pension, provident fund and insurance. These benefits cannot be considered as death benefits but these benefit's were, to which the legal representative were entitled even otherwise on the retirement of the deceased or on the maturity of the insurance policy. I, thereforee, hold that no deduction on any account should be made from the compensation. An appeal against the said judgment of H.L. Anand, J. being LPA No. 113 of 1974 (Shri Ish Kumar and Ors. v. Bhagwanti and Ors.) was filed but the same was dismissed by the Division Bench on 28th October, 1980.

13. The Division Bench had observed that gratuity and Provident. Fund belonged to the deceased and cannot be said to be benefits arising to the estate as a result of his death. As regards the pension and insurance, a doubt was created but no final decision was taken. The appeal however, was dismissed. In other words the Division Bench affirmed the judgment of H.L. Anand. J.

14. As regards the lumpsum payment, no deduction should be allowed on this account, as while calculating the compensation, no allowance has been made for the increments from 1972 to 1981 which the deceased whether earned during his service. The widow of the deceased got employment with DESU after the accident as a clerk at Rs. 230 per month. The counsel for the respondents says that her income should be deducted from the compensation payable to her. There is no pleading in the written statement. Moreover if the heir has joined service her salary cannot be taken into consideration or deducted from the amount of compensation payable to her.

15. I, thereforee, accept FAO No. 289 of. 1980 and hold that the appellants, heirs and legal representatives of the deceased are entitled to a sum of Rs. 2,00,000 as compensation from the respondents jointly and severally together with interest @ 9 per cent per annum from the date of filling of the claim petition i.e. 23rd December, 1972 till realisation with costs. Counsel fee Rs. 500. The award of the Tribunal is modified accordingly. The appeal, FAO 202 of 1980 filed by the respondents is dismissed with no order as to costs.


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