RAJIV SHARMA,SATISH CHANDRA, JJ. - (1.) ALL the appeals filed by different appellants under Section 173 of Motor Vehicle Act, 1988, against the common judgment and order dated 30.08.1995, passed by the Motor Accident Claim Tribunal, Faizabad, in Claim Petition No.133 of 1993. The brief facts of the case are that on 30.09.1998, Sri Chhabi Nath Padney, husband and father of the claimants was going by an official car from Raebareli to Lucknow, from where he was supposed to fly to Geneva via New Delhi to attend a meeting. He was working as Additional General Manager in Indian Telephone Industries Ltd., Raebareli (in short, "ITI"). He was aged about 48 years. On the date of accident, he was going from Raebareli to Lucknow Airport in an official Ambassador Car No. UGB 4040. When the car reached near Microwave Station on Raebareli Lucknow road, about 8.00 p.m., it has collied with one loaded truck of iron rods. The car was driven by Sri Pratap Singh, who was holding a valid driving license and was an employee of the ITI. Sri Chhabi Nath Pandey was taken to Balrampur Hospital and K.G.M.C. Lucknow, lastly, to Sanjai Gandhi Post Graduate Institute, Lucknow, where after seven days, he died. The appellants-claimants have filed a claim petition for Rs.8,00,000/-, out of which, a total claim of Rs.7,54,000/- was awarded against the ITI and the National Insurance Company jointly and severely, who had provided the insurance cover to the Ambassador Car in question, but no liability was fixed on the Truck owner and the Oriental Insurance Company, who had insured the Truck No. URL-9855. Being aggrieved, the National Insurance Company Ltd., Indian Telephone Industries Ltd., as well as the claimants have filed present appeals.
(2.) WITH this background, Sri R.S. Tripathi, learned counsel for the appellants-claimants (FAFO No. 276 of 1995) submits that the compensation is meager one. Ex-gratia payment of Rs. Three Lacs has wrongly been deducted by the ITI from the total compensation awarded. He further submits that the employer has taken an amount of Rs.65,228/- under the Workmen's Compensation Act as a part of the compensation wrongly. The Tribunal has wrongly applied the multiplier of 11. He also submits that no compensation was awarded for the mental agony, pain and suffering as well as the future prospects. This is also a plea of the learned counsel for the appellant that no benefit of time pay scale of the deceased was given to family members. So, he made a request that the total compensation may be awarded more than Rs.15,00,000/-. The ex-gratia payment should not be a part of the compensation. For this purpose, he has relied on the ratio laid down on the following cases :- (i) Helen C. Rebello (Mrs) and Ors. vs. Maharashtra State Road Transport Corporation and Another, 1999 SCC (Cri) 197; (ii) State of A.P. and Another vs. K. Pushpalatha and Ors., 2007 (1) TAC 887 (AP); (iii) The General Manager, Karnataka State Road Transport Corporation, Bangalore vs. Kwaja Hussain Shaiksab, AIR 1979 (Kar) 58; (iv) A.P. Dorairaj vs. State of Madras, AIR 1974 (Mad) 14; (v) Pallavan Transport Corporation Ltd. (Metro) vs. P. Murthy and etc., AIR 1989 (Mad) 14; (vi) Harivadan Maneklal Modi and Another vs. Chandrasinh Chhatrasinh Parmar and Others, AIR 1988 (Guj) 69; (vii) The Branch Manager, the Oriental Fire and General Insurance Co. Ltd. vs. Laxmi Patra and Ors., AIR 1991 (Ori) 310; (viii) Jyoti Kaul and Ors. vs. State of M.P. and Another, AIR 2000 SC 3582; (ix) Ramesh Chandra vs. Randhir Singh and Others, (1990) 3 SCC 723; (x) Smt. Shashi Jain vs. State of U.P., F.A.F.O. No. 57 of 1984, decided on 03.05.2002; (xi) General, Manager, Kerala State Road Transport Corporation, Trivandrum vs. Susamma Thomas (Mrs) and Ors., (1994) 2 SCC 176; (xii) National Insurance Co. Ltd. vs. M/s. Swaranlata Das and Ors., 1993 Supp. (2) SCC 743; (xiii) National Insurance Co. Ltd. vs. Indira Srivastava and Ors., (2008) 2 SCC 763; (xiv) The New India Assurance Company Ltd., Saharanpur vs. Shri Sudesh Bhalla and Ors., AIR 1991 (All) 43; and (xv) Oriental Insurance Co. Ltd. vs. Mohd. Nasir and Anr., 2009 (5) ALJ 253 (SC). Sri Krishna Chandra, learned counsel for the Indian Telephone Industries Ltd. (FAFO No. 273 of 1995) submits that the award @ 12% interest is on higher side. The liability was fixed jointly and severely on the National Insurance Company as well as Indian Telephone Industries. He submits that the ITI has already given Rs.3,00,000/- as ex-gratia payment and remaining amount of its share has been deposited. He submits that for the balance of Rs.4,54,000/-, the National Insurance Company Ltd. may be directed to make the payment Learned counsel further submits that it is a case of accident on the highway, where the car had naturally to be driven at a high speed and the driver in the night might have not seen the parked truck on the road. He submits that the truck owner is exclusively liable for the compensation and no liability can be fastened upon the appellant. He also submits that the ex-gratia payment was rightly adjusted against the compensation awarded by the Tribunal. For this purpose, he has relied on the ratio laid down in the case of Smt. Kashmiran Mathur and others vs. Sardar Rajendra Singh & Anr., AIR 1983 (MP) 24 [Indore Bench (FB)], Para-26, where it was mentioned that :- "26. Last item of deduction is the exgratia payment made by the State to the widow. S.L. Parmer (C.W. 7), an employee of the Industries Department where the deceased was in service, stated on the basis of record that Rs.4,400/- were paid ex-gratia to the widow. 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 charitable grounds "On the occasion of the death" but is an advantage "by reason of the death". This amount cannot be claimed by the dependent unless death of the employee has occurred. This amount was, therefore, deductible from the amount of compensation."
(3.) SRI U.P.S. Kushwaha, learned counsel for the National Insurance Company (FAFO No. 275 of 1995) submits that driver of the car was holding a Heavy Motor Vehicle (HMV) driving license and as per Motor Vehicles Act, no person shall drive a transport vehicle in a public place, unless his driving license specifically entitled to do so and as per the facts of the case, the driver of the Ambassador Car was holding a driving license in the category of HMV i.e., he does not have any valid and effective license issued by the competent authority to drive the light motor vehicle (LMV). So, the judgment and order passed by the Tribunal is not sustainable in the eye of law.;