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Judgment
Hon''ble Shri Rajeev Gupta, C.J.—These appeals are directed against the award dated 9th of May, 2007 passed in Claim Case No. 78/2007 by the Motor Accident Claims Tribunal, Korba, District Korba (C.G.). M.A.(C) No. 1152/2007 has been filed by the claimants for enhancement of compensation, whereas M.A.(C) No. 972/2007 has been fined by the owner and driver for setting- aside/modification of the award.
The facts, briefly stated, are as under:-
Deceased- Baiga Ram Kanwar was working on the post of driver and mechanic in S.E.C.L. He was aged about 44 years. On the date of accident i.e. on 26.11.2002 he was driving a jeep of S.E.C.L. According to the claimants, the above jeep was dashed by dumper No. 7 FZ 00164 on account of rash and negligent driving of the said dumper by its driver. The above dumper was also belonging to S.E.C.L. Baiga Ram received multiple serious injuries in the said accident. He was admitted in the hospital from 26.11.2002 to 16.12.2002. The claimants are widow, sons & daughters of deceased- Baiga Ram. They filed a Claim Petition u/s 166 of the Motor Vehicles Act claiming compensation of Rs. 40,38,000/-. The driver and owner of the dumper took a specific plea that after death of the deceased, his son Prem Singh (Claimant No.5) was given compassionate appointment and he was earning Rs. 8,426.04 p. per month. No issues were framed on the said plea. The Tribunal, on the evidence led by the parties, held that the accident occurred on account of rash and negligent driving of the offending dumper by its driver, therefore, the owner and driver of the dumper shall be jointly and severally liable to pay compensation to the claimants. The Tribunal ultimately found that the claimants were entitled to receive Rs. 10,50,000/- as compensation with interest at the rate of 6% per annum from the date of filing of the Claim Petition till the date of realization.
Dr. N.K. Shukla, learned Senior Advocate appearing on behalf of the owner and driver, argued that though the specific plea of compassionate appointment was taken in the written statement, no issues were framed and the point raised was not at all considered. He also argued that a very high amount of compensation has been assessed by the Tribunal.
On the other hand, Mr. Amiyakat Tiwari, learned counsel appearing on behalf of the claimants, opposed these arguments. Supporting the finding of liability, he argued that the income of the deceased was not properly assessed and low compensation was awarded.
We have heard learned counsel for the parties at length and have also perused the records of the claim case.
A perusal of the written statement filed by the owner would show that vide Para-25 of the written statement the owner took specific plea relating to compassionate appointment given to claimant No.5. Para-25 of the written statement is quoted herein under:-
(Vernacular matter deleted)
Even after the above specific plea taken by the owner, the Claims Tribunal did not frame any issue on that plea and the parties did not have any opportunity to lead evidence on the said plea. The Tribunal has recorded the finding that the deceased was earning Rs. 10,000/- per month, whereas the plea relating to compassionate appointment would show that the son of the deceased was given compassionate appointment on the pay of Rs. 8,426.04 p. per month. In Bhakra Beas Management Board -Vs- Smt. Kanta Aggarwal & Ors., 2008 AIR SCW 5256, the Supreme Court held that principle of loss and gain applies while assessing the compensation in motor vehicle accident cases. The benefits which the claimant receives on account of the death or injury have to be duly considered while fixing the compensation. The Supreme Court held that claimant, wife, was given compassionate appointment and non-consideration of this benefit in assessing compensation was improper.
The argument raised by Dr. Shukla finds support by the above judgment of the Supreme Court. We are of the view that if specific plea relating to compassionate appointment was raised by the owner, the Tribunal ought to have considered it, firstly by framing issues on that plea and then by calling the parties to adduce evidence on the said issues in usual manner and by recording a finding in that regard.
In the above facts and circumstances of the case and in light of the above decision of the Supreme Court, we deem it appropriate to remit this matter to the concerned Tribunal for a fresh consideration. Since the claimants are also claiming enhancement, we feel it appropriate to direct the Tribunal to re-hear the matter from the stage of framing of the issues.
For the foregoing reasons, the impugned award passed by the Tribunal is set-aside. The matter is remitted to the Tribunal for passing a fresh award. The Tribunal shall re- frame the issues and then shall call upon the parties to lead evidence on all issues and shall pass the award in accordance with law. The parties are directed to appear before the Tribunal on 19th of March, 2012. The Tribunal is directed to dispose of the matter within 6 months from the said date.
Ordered Accordingly. No cost.