J-FA-264 & Ors. v. State of Maharashtraand anr. (2016) 11 SCC 613 has categorically held that & Ors.

J-FA-264,265-17.odt 2/351. Sau. Chhaya wd/o Arun Khobragade Aged about : 46 years, Occupation : Household (Ori. P-1)2. Kum. Swati d/o Arun Khobragade, Aged about : 26 years, Occupation : Housewife (Ori. P-2)3. Abhijit s/o Arun Khobragade, Aged about : 23 years, Occupation : Service (Ori. P-3)4. Ankur s/o Arun Khobragade, Aged about 21 years. Occupation : Student (Ori. P-4) All 4 are r/o Sugat Nagar, Po. Uppalwadi Dist. Nagpur5. Parag Tours and Travels, Prop. Pramod Dongre Aged about : Major, Owner of Vehicle R/o Plot No.181, Near Bajirao Sahare’s House, Lashkaribagh, Nagpur (Ori. R-1) 6. Divisional Manager, United India Insurance Company Ltd. Mount Road Extension, Sadar Nagpur (Ori. R-2)… RespondentsSmt. Gauri Venkatraman, Advocate with Shri Yash Venkatraman for appellant in FA/264/2017.Smt U. A. Patil, Advocate, with Shri Abhinil Kuradkar, Advocate for appellant in FA/265/2027.Shri S. W. Sambre, Advocate with Shri P. D. Naukarkar, Advocate for respondent Nos. 1 to 3 in FA/264/2017 and for respondent Nos. 1 to 4 in FA/265/2017.Ms Anita Mategaonkar, Advocate for the respondent-Insurance Company.CORAM : ABHAY J. MANTRI, J.DATED : 12 -08-2025. Common Judgment : Since the facts of both these appeals are identical andsimilar, which arise out of the same motor vehicle accident, i.e. both J-FA-264,265-17.odt 3/35deceased persons were sitting in the same Tata Sumo vehicle, they arebeing heard and disposed of together by this common judgment. 2. Both appeals arise from judgments dated 29.06.2012, passedby the learned Member, Motor Accident Claim Tribunal-3, Nagpur,(hereinafter referred to as “the Tribunal”) in Claim Petitions Nos. 671and 672 of 2012, respectively, whereby both petitions were allowed, being aggrieved by the same original respondent No.3 WCL, havepreferred these appeals. For the sake of convenience, I would like to refer to the factsof First Appeal No.264/2017 and the parties are referred to as pertheir status in the claim petitions. 3. The facts of the cases in a nutshell are as under : On 20/12/2011 at about 11.30 am, deceased UmraoGanpatrao Dupare and Arun Namdeo Khobragade, along with otherteam members, were coming from W.C.L. coal mines to Gondegaon byTata Sumo bearing No.MH-31/CA-3124 (for short,-‘Tata Sumo’). Whenthey came near Gondegaon W.C.L. mines, one Dumper bearing No.M.E.M.L-B.H. 50-MI.3424 (hereinafter referred to as “the Dumper”)came from the opposite direction and collided with each other. Due tothe said accident deceased and others sustained grievous injuries. Thedeceased, Umrao and Arun, succumbed to the injuries. Accordingly, J-FA-264,265-17.odt 4/35the offence was registered against the drivers of the ‘Dumper’ as wellas the ‘Tata Sumo’ vide Crime No. No.145/2011 at Kanhan PoliceStation for the offences punishable under Sections 279, 337 and 304-Aof the Indian Penal Code. The deceased, Umrao, was 53 years old, andthe deceased Arun was 52 years old. They both were in service withthe appellant. Both were permanent employees, and their monthlysalary was Rs. 27,574/- and Rs. 28,777/-, respectively. 4.The petitioners/claimants were dependent on the deceased, Umrao and Arun. Due to the death of the deceased, they have suffereda loss and therefore they have filed the claim petitions claimingcompensation.5. Respondent No.1-owner of the ‘Tata Sumo’ vehicle, filed awritten statement and contended that the accident took place due torash and negligent driving of the driver of the Dumper and not of the‘Tata Sumo’. The Tata Sumo was insured with respondent No.2-Insurance Company, and therefore, the respondent No.1 is not liable topay the compensation. 6. The respondent No.2 contested the petition by filing a writtenstatement and contended that the accident took place due to the rashand negligent driving of the driver of the ‘Dumper’. So, they denied the J-FA-264,265-17.odt 5/35responsibility of respondent No.2 and urged for dismissal of thepetition. 7. The respondent No.3/appellant filed their written statementand raised the preliminary objection that the petition is notmaintainable against them as the Dumper is not covered under thedefinition of Motor Vehicle or Vehicle as defined under Section 2(28)of the Motor Vehicles Act 1988 (hereinafter referred to as the “M.V.Act”). A dumper is a special type of vehicle, or rather its machinery, adapted for use only in a specified area, like mines. The said Dumpercomes under the definition of the heavy Earth Moving Machine and isnot used on the road, and therefore, the petition against respondentNo.3 is not maintainable. a) It is further averred that it has deposited compensation ofRs. 6,12,360/- on 06/01/2012 before the Commissioner forWorkmen’s Compensation/Labour Court, Nagpur, towards theworkmen's compensation in respect of the deceased on account of anaccident under the Workmen’s Compensation Act. The petitioners havewithdrawn the said amount. Thus, respondent No.3 has fulfilled itsliability to pay compensation in respect of the accidental death of thedeceased employee. As such, as per Section 167 of the MV Act, thepetitioners are not entitled to claim compensation under both the Acts, and hence, the petition is not maintainable. The petitioners are not J-FA-264,265-17.odt 6/35approaching the Court with clean hands, and they have suppressed thematerial facts from the Court and therefore, on that ground also, thepetition is liable to be dismissed. b) It is further denied the contents of the petition in toto. It iscategorically denied that the accident occurred due to the rash andnegligent driving of the driver of the Dumper. The Dumper moves veryslowly and in a particular place inside the mines. On the contrary, it iscontended that the driver of the Tata Sumo gave a dash to the Dumper, and the accident took place due to the rash and negligent driving ofthe driver of the Tata Sumo. It denied the age of the deceased and theloss of dependency. c) Lastly, it is averred that the son of the deceased employeewas given an appointment on compassionate grounds, and he isworking in the Gondegaon mines sub area of the WCL, and thereby therespondents have completely fulfilled their liability towards thedeceased in the alleged accident. Eventually, it is submitted that if theCourt comes to the conclusion that respondent No.3 is liable to pay thecompensation, then the owner of the vehicle in question, i.e. TataSumo, also has to be held liable to pay the compensation and urged fordismissal of the claim petitions.8. After considering the submissions of all the parties, thelearned Tribunal has framed the issues. Pursuant to the issues, the J-FA-264,265-17.odt 7/35petitioners have adduced the evidence and produced and proveddocuments. The petitioners examined PW-1 Anita and one Abdul BriMohd. Yakub as PW-2 and proved the documents. As against this, noneof the respondents had entered into the witness box nor led any evidence insupport of their defence.9. Upon deliberating the evidence on record, the learnedTribunal held that drivers of both the vehicles, i.e. Dumper and TataSumo, were equally responsible for the accident and held respondentNos.1 and 2 jointly and severally liable to the extent of 50% andrespondent No.3-WCL liable to the extent of 50% compensation anddirected to pay compensation accordingly.10. It is pertinent to note that, except for respondent No.3/appellant-WCL, none of the parties, i.e. the petitioners or respondentNos. 1 and 2, has preferred any appeal against the impugned judgmentand award. The appellant, i.e. respondent No.3, being aggrieved by theimpugned judgment, has preferred these appeals. Accordingly, bothappeals were Admitted on 30 and 31 March 2017, respectively. 11. Heard the learned Advocates for the parties at length. Perused the appeal memos, impugned judgment, record andproceedings and the judgments relied upon by the parties. Thefollowing points arise for determination : J-FA-264,265-17.odt 8/35 (i) Whether respondent No.3/appellant has proved that the petitionsare not maintainable against it? (ii) Whether the respondent No.3/appellant has proved that they are notresponsible for paying 50% compensation? (iii) Whether any interference is required in the impugned judgment? (iv) What order?Point No. (i).12. The crux of the argument of learned Advocate Smt. Venkatraman for the appellant-WCL is that the Dumper is not a motorvehicle or vehicle as defined under Section 2(28) of the Motor VehiclesAct, and therefore, the petition is not maintainable against it. Shefurther canvassed that after the enactment of the Motor Vehicles Act, the Government of India issued a communication dated 13/07/2020and thereby clarified that the Dumper does not come within the ambitof a Motor Vehicle, but it is a ‘Heavy Earth Moving Machinery’ andtherefore also the petition is not maintainable against the appellant. During the arguments, she has taken me through the definition ofMotor Vehicle under Section 2(28) and the communication dated13/07/2020 and urged that in view of the above, the Dumper cannotbe termed as a Motor Vehicle. Hence, she urged setting aside thefinding of the Tribunal in that regard. J-FA-264,265-17.odt 9/3513) Per Contra, Shri. Sambre S. W., learned Advocate for thepetitioners-claimants, strenuously argued that this Court, as well as theHon’ble Apex Court in Western Coalfields Ltd. vs. State of Maharashtraand anr. (2016) 11 SCC 613 has categorically held that a Dumper comesunder the definition of motor vehicles under Section 2(28) of the M.V.Act. Therefore, the issue raised by the appellant is covered by themandate in the above judgment, and hence it cannot be said that aDumper does not come within the purview of a motor vehicle.14.He further propounded that the communication dated13/07/2020 is neither a notification nor has statutory effect, but it isonly a communication issued by the Government of India. Additionally, the communication indicates that it was issued solely for the purposeof registration/driving licence, and not in respect of the motor vehicle; therefore, it does not imply that a Dumper is not a motor vehicle. Furthermore, the said communication was not approved by theGovernment, and thus, it is not helpful to the appellant in support oftheir contention. On the contrary, the mandate in Western CoalfieldsLtd. (supra) is applicable in the case at hand. Hence, he argued that asthe Dumper comes within the definition of motor vehicle underSection 2(28), the petition is maintainable against the appellant. J-FA-264,265-17.odt 10/3515. Having heard the learned Advocates for the parties, I wouldlike to reproduce the definition of Motor Vehicle, which reads thus : “Section 2(28) “motor vehicle” or “vehicle” means anymechanically propelled vehicle adapted for use upon roadswhether the power of propulsion is transmitted thereto from anexternal or internal source and includes a chassis to which abody has not been attached and a trailer; but does not includea vehicle running upon fixed rails or a vehicle of a special typeadapted for use only in a factory or in any other enclosedpremises or a vehicle having less than four wheels fitted withengine capacity of not exceeding twenty five cubiccentimeters.” 16. It would be appropriate to mention that in Western CoalfieldsLtd. (supra), the Division Bench of this Court having consideredSection 2(28) of the M.V. Act, along with Rules 2 (ca), 126 and 126Bof the Central Rules, 1989 and various decisions of the Hon’ble ApexCourt, discussing in detail has categorically held that “Heavy earthmoving machinery commonly known as ‘Dumper’ is a motor vehiclewithin the meaning of Section 2 (28) of the Motor Vehicles Act, 1988”.17. It is worth noting that Western Coalfields had challenged thesaid judgment before the Hon’ble Apex Court in Civil Appeal No.2704/2004, decided on 06.05.2016, wherein Hon’ble Apex Courtconfirmed the order of this Court holding that “the Excavator/Dumper(used in mining and extraction of mineral) falls within the meaning of the J-FA-264,265-17.odt 11/35definition of “motor vehicles” contained in Section 2(28) of the MV Act andwould therefore be liable for registration, payment of taxes, etc. asenvisaged under the provisions of MV Act”.18. The aforesaid decisions categorically reveal that the questionthat arises in this case, whether the Dumper/excavator is a motorvehicle within the ambit of Section 2(28) of the Act or not, is alreadyadjudicated by the Hon’ble Apex Court. It is to be noted that thelearned Advocate for the appellant does not dispute the abovedecisions or the aforesaid proposition of the law. Thus, in my opinion, this question is no more res integra to reconsider, and the aforesaidobservations are squarely applicable to the present case; therefore, I donot find substance in the contention of the learned Advocate for theappellant that Dumper does not come within the meaning of thedefinition of motor vehicles.19) The next point argued by the learned Advocate Smt. Venkatraman for the appellant-WCL is that the appellant has depositedthe compensation amount before the Commissioner for Workmen’sCompensation/Labour Court, Nagpur, towards workmen’scompensation in respect of the deceased on account of the allegedaccident, and the petitioners have withdrawn the said amount. Similarly, the appellant has given an appointment to the son of the J-FA-264,265-17.odt 12/35deceased on compassionate grounds, and thus the appellant-WCL hascompletely fulfilled its liability towards the deceased as alleged and assuch, the petitioners are not entitled to seek compensation underSection 167 of the M. V. Act as they have received the compensationunder the Workmen’s Compensation Act and hence the petitions arenot maintainable. 20. Shri. Sambre S.W., learned Advocate for the petitioners-claimants vehemently contended that the petitioners have not madeany application under Section 10 of the Employees Compensation Act,1923 ( for short,- ‘the Act of 1923’) for getting compensation from theappellant but they have only made an application under Section 8 ofthe Act of 1923 for distribution of the amount deposited by theappellant before the Labour Court and therefore it cannot be said thatthe petitioners have invoked the application for getting compensationunder the Employees’ Compensation Act. 21. To buttress his contentions, he has relied on paragraphs 11to 14 of the judgment in Oriental Insurance Co. Ltd. Vs Dyamavva andors., 2013 (2) T.A.C. 1 (S.C.) and others, and submitted that noapplication was ever filed by the respondents-claimants hereinunder Section 10 of the Act of 1923. In view of the facts, it can bestated that the respondents- claimants, having never exercised their J-FA-264,265-17.odt 13/35option to seek compensation under Section 10 of theWorkmen’s Compensation Act, 1923, could not be deemed to beprecluded from seeking compensation under Section 166 of the MotorVehicles Act, 1988.22. It is to be noted that the Hon’ble Apex Court, while dealingwith a similar controversy, in Oriental Insurance Co. Ltd. (Supra), afterconsidering the provisions of Sections 8 and 10 of the Act of 1923 indetail, discussed the same and in paragraphs Nos. 11 to 14 have heldas under, which read thus : “11. Having perused the aforesaid provisions and determined theireffect, it clearly emerges that the Port Trust had initiated proceedings forpaying compensation to the dependants of the deceased Yalgurdappa B. Goudar“suo motu” under Section 8 of the Workmen’s Compensation Act, 1923. Forthe aforesaid purpose, the Port Trust had deposited a sum of Rs. 3,26,140/- withthe Workmen’s Compensation Commissioner on 4.11.2003. Thereupon, theWorkmen’s Compensation Commissioner, having issued notice to theclaimants (dependants of the deceased Yalgurdappa B. Goudar), fixed20.4.2004 as the date of hearing. On the aforesaid date, the statement ofthe widow of Yalgurdappa B. Goudar, namely, Dyamavva Yalgurdappa, was recorded, and thereafter, the Workmen’s Compensation Commissionerby an order dated 29.4.2004, directed the release of a sum of Rs. 3,26,140/-to be shared by the widow of the deceased and his daughter in definiteproportions. 12. The issue to be determined by us is whether the acceptance of theaforesaid compensation would amount to the claimants having exercisedtheir option to seek compensation under the Workmen’s Compensation Act,1923. The procedure under Section 8 aforesaid (as noticed above) is initiatedat the behest of the employer “suo motu”, and as such, in our view, cannot beconsidered as an exercise of option by the dependants/claimants to seekcompensation under the provisions of the Workmen’s Compensation Act, 1923.The position would have been otherwise if the dependants had raised a claimfor compensation under Section 10 of the Workmen’s Compensation Act, 1923.In the said eventuality, certainly compensation would be paid to the dependantsat the instance (and option) of the claimants. In other words, if the claimantshad moved an application under Section 10 of the Workmen’s Compensation Act, 1923 , they would have been deemed to have exercised their option to seek compensation under the provisions of the J-FA-264,265-17.odt 14/35Workmen’s Compensation Act. Suffice it to state that no such application wasever filed by the respondents-claimants herein under Section 10 aforesaid. In the above view of the matter, it can be stated that the respondents- claimants, having never exercised their option to seek compensation under Section 10 of the Workmen’s Compensation Act, 1923 , could not be deemed to be precluded from seeking compensation under Section 166 of the Motor Vehicles Act, 1988. 13. Even though the aforesaid determination concludes the issue inhand, ambiguity, if at all, can also be resolved in the present case, on thebasis of the admitted factual position. The first act at the behest of therespondents-claimants for seeking compensation on account of the death ofYalgurdappa B. Goudar was by way of filing a claim petition under Section166 of the Motor Vehicles Act, 1988, on 30.05.2003. The aforesaid claimpetition was the first claim for compensation raised at the hands of therespondents-claimants. If the question raised by the appellant has to bedetermined with reference to Section 167 of the Motor Vehicles Act, 1988,the same is liable to be determined on the basis of the aforesaid claimapplication filed by the respondents-claimants on 30.05.2003. Thecompensation deposited by the Port Trust with the Workmen’sCompensation Commissioner for payment to the respondents-claimantswas much later, on 4.11.2003. The aforesaid deposit, as already noticedabove, was not at the behest of the respondents-claimants, but was basedon a unilateral “suo motu” determination of the employer (the Port Trust)under Section 8 of the Workmen’s Compensation Act, 1923. The firstparticipation of Dayamavva Yalgurdappa, in the proceedings initiated bythe Port Trust under the Workmen’s Compensation Act, 1923, was on20.4.2004. Having been summoned by the Workmen’s Commissioner, shegot her statement recorded before the Commissioner on 20.4.2004. Butwell before that date, she (as well as the other claimants) had already fileda claim petition under Section 166 of the Motor Vehicles Act, 1988, on30.5.2003. Filing of the aforesaid claim application under Section 166aforesaid, in our view, constitutes her (as well as that of the other dependants ofthe deceased) option to seek compensation under the Motor Vehicles Act, 1988.The instant conclusion would yet again answer the question raised by theappellant herein, under Section 167 of the Motor Vehicles Act, 1988, in thesame manner as has already been determined above. 14. In the aforesaid view of the matter, we hereby affirm thedetermination rendered by the Motor Accidents Claims Tribunal, Bagalkot, and the High Court in awarding compensation quantified at Rs.11,44,440/- to the claimant. The Motor Accidents Claims Tribunal, Bagalkot, as also the High Court, ordered a deduction therefrom of a sum of Rs.3,26,140/- (paid to the claimants under the Workmen’s Compensation Act,1923). The said deduction gives full effect to Section 167 of the Motor VehiclesAct, 1988, inasmuch as it awards compensation to the respondents-claimantsunder the enactment based on the option first exercised, and also ensures thatthe respondents-claimants are not allowed dual benefit under the twoenactments. J-FA-264,265-17.odt 15/3523. A bare perusal of the above judgment, it is, thus apparent thatif procedure under Section 8 was initiated at the behest of theemployer/appellant suo-motu, in such circumstances it cannot beconsidered as an exercise of option by the dependents/petitioners toseek compensation under the provisions of theWorkmen’s Compensation Act, 1923. The position would have beenotherwise if the petitioners/dependents had raised a claim forcompensation under Section 10 of the Employees’/Workmen’s Compensation Act, 1923. However, no such applicationwas ever filed by the petitioners/respondents Nos. 1 to 3 hereinunder Section 10 aforesaid. In the above view of the matter, it can bestated that the respondents- petitioners, having never exercised theiroption to seek compensation under Section 10 of the Act of 1923,could not be deemed to be precluded from seeking compensationunder Section 166 of the Motor Vehicles Act, 1988. Therefore, theHon’ble Apex Court confirmed the view taken by the learned Tribunaland the High Court of Karnataka, and consequently, the law laid downin the said decision is squarely applicable to the case at hand.24. Apart from this, the communication dated 13/07/2020 onwhich the appellant is relying has no statutory effect. The same wasnot approved by the Government nor notified in the official gazette, and therefore, it has no statutory effect. For the sake of argument, J-FA-264,265-17.odt 16/35even if it is assumed that the Government has issued the saidcommunication for the claims made under the Motor Vehicles Act, inthat case also the said communication/Circular cannot overridestatutory rules or would not prevail over the Rules or statute. Besides, said communication cannot be made or given effect in violation ofwhat is mandated by the rules, and therefore, it would not help theappellant. Said communication appears to be issued in violation of themandate laid down in Western Coalfields Ltd. (supra) and therefore alsoI do not find substance in the contention of the learned Advocate forthe appellant that Dumper is not covered under the definition of‘motor vehicle’ or ‘vehicle’ as defined under Section 2(28) of the MotorVehicles Act. On the contrary, in view of the mandate laid down inWestern Coalfields Ltd. (supra), I have no hesitation to hold that aDumper falls within the meaning of the definition of motor vehicle andthe petition is maintainable against the WCL. Hence, I answer pointNo. (i) in the negative. Point No. (ii).25. The next ground raised by the learned Advocate for theappellant is that the claimants/petitioners failed to adduce evidence toprove that the driver of the Dumper was rash and negligent in drivingthe vehicle. She has drawn my attention to paragraph 13.4 of thejudgment in Reshmakumari and others vs. Mdan Mohan and anr., (2013) 9 J-FA-264,265-17.odt 17/35SCC 65 and urged that ‘it is for the claimants to prove negligence onthe part of the driver or owner of the vehicle’. Similarly, he has pointedout paragraph No. 13 of the judgment in Shriram Insurance Co. Ltd. Vs.Vanita and others, 2019 SCC OnLine Bom 2058, and canvassed that “Theinitial burden is always on the claimants to prove the fact of accident”however, they failed to prove the accident, He further placed relianceon paragraph 22 of the judgment in Sangita Prakash Pawar and ors. vs. Mohadeorao R. Mahadik and ors. 2017 SCC OnLine Bom 8608 and arguedthat ‘negligence is a question of fact. There is a species of negligencewhere the nature of the act is such that the fact proves itself. Negligence must usually be proved. There may be evidence as to thespeed of the vehicle, or whether it was travelling on the wrong side ofthe road, in an uneven manner or was attempting while mobilesomething especially hazardous’. So, she canvassed that it has to bedemonstrated that the driver of the ‘Dumper’ was rash and negligent tocause the accident. 26. She has taken me through paragraph 13 of the judgment in SmtUsha Kiran Shridhar Shinde and ors. vs. Arunkumar Kisanlal Kalal and ors.2001(4) ALL MR 21 and submitted that merely proving the panchanamain evidence is not a substitute for proving the contents of thepanchanama, and therefore, she argued that the said panchanama andFIR or police papers are not helpful to the petitioners in support oftheir claim. J-FA-264,265-17.odt 18/3527. Likewise, she has taken me to paragraph 10 of the impugnedjudgment, paragraph 6 of the written statement and the evidence ofPW-1 and submitted that an eye-witness or panch failed to prove thecontents of the panchnama and other documents on record, andtherefore those documents are not helpful for the petitioners insupport of their case. The petitioners failed to examine the eyewitnessto that extent. Non-examination of the eye-witness leads to drawing anadverse inference regarding the proof of the panchanama. In fact, itwas the best available evidence to support their case; however, thepetitioners failed to prove that the driver of the Dumper was negligent. She has pointed out the testimony of PW-1. During her cross-examination, it is clear that she does not know who was at fault in theaccident. She took me through paragraph 18 of the judgment andcanvassed that the finding recorded by the learned Tribunal is contraryto the evidence on record. The Tribunal has erred in holding that theappellant is liable to pay 50% compensation, and therefore shesubmitted that the finding recorded by the learned Tribunal to hold therespondent No.3, i.e. the appellant, is contrary to the facts andevidence on record, as such is liable to be set aside. 28. On the other hand, learned Advocate Ms. Mategoankar for therespondent- Insurance Company argued that a compassionateappointment given to the son of the deceased does not bar to granting J-FA-264,265-17.odt 19/35of compensation under the MV Act. She further submitted that thefinding recorded by the learned Tribunal fastening liability onrespondent Nos. 1 and 2 jointly 50% and on respondent No.3 to thetune of 50% respectively is just and proper. Thus, the InsuranceCompany has complied with the said order and, as such, she supportedthe impugned judgment and order and urged for dismissal of theappeals. To buttress her argument, she has placed reliance on thejudgment in National Insurance Company Ltd. vs. Rekhaben And ors.(2017) 13 SCC 547 and took me through paragraphs 18 and 19 of thesaid judgment wherein the Hon’ble Apex Court held that “the amountearned by the claimants from compassionate appointments cannot bededucted from the quantum of compensation receivable by themunder the Act. The source from which compensation on account of theaccident is claimed and the source from which the compassionateemployment is offered are completely separate, and there is no co-relation between these two sources.”29. As against, learned Advocate Shri. Sambre advancedsubmissions that the finding recorded by the learned Tribunal inrespect of the negligence of both drivers is just and proper. He has alsopointed out paragraph 10 of the written statement and submitted thatthe averments in the said written statement itself indicate that theappellants are accepting their liability, and in addition to their liability, J-FA-264,265-17.odt 20/35the liability of the driver of the Tata Sumo. He further propounded thatthe appellants failed to enter into the witness box, nor did they adduceany evidence in support of their contention that the driver of theDumper was not rash and negligent or not responsible for the accident. The respondent No.1 could have examined the driver of the Dumper insupport of their defence. Non-examination of the driver of the Dumperled to draw an adverse inference. The driver of the Dumper was thebest available witness to examine him in support of their defence. He further contended that the petitioner No.1 in herexamination-in-chief categorically deposed that the accident occurreddue to the rash and negligent driving of the driver of the Tata Sumoand Dumper. However, no counter evidence was adduced by theappellant to rebut the evidence of petitioner No.1, who in hertestimony categorically deposed that both drivers were responsible, but non adducing the counter evidence by the appellant leads to anadverse inference. Similarly, the petitioner No.1 in her examination-in-chief produced and proved the police papers. No suggestion was put toher that the contents of said police papers were incorrect, norchallenged the said contents during her cross-examination, andtherefore there is no reason to discard the testimony of the petitionerNo.1 in that regard. He further pointed out to the FIR and submittedthat an offence was registered against the drivers of both the vehicles, but none of the drivers has challenged the said FIR. There is no reason J-FA-264,265-17.odt 21/35to discard the FIR and police papers when they are not challengedbefore the competent Court, as they are part of the investigation. Lastly, he put forth that the appellant in paragraph 6 of the writtenstatement averred that the Dumper moves very slowly and in aparticular place inside the mine, and the driver of the Tata Sumo gavea dash to the Dumper. However, no evidence is adduced to prove thesaid averment and therefore, in the absence of evidence, mereaverment is not helpful to support their contention. As such, he arguedthat the impugned finding recorded by the learned Tribunal is just andproper. 30. On perusal of the record, it appears that after the occurrenceof the accident, the FIR was registered against the drivers of theDumper and Tata Sumo vide Crime No.145/2011. Accordingly, on thesame day spot panchnama was carried out. It further reveals that thepetitioners have proved documents, i.e. FIR Exhibit-32, spotpanchanama Exhibit-34 and other documents by adducing evidence inthat regard. During cross-examination of the petitioner No.1, neithersuggestion was put to her that the contents of the said documents areincorrect, nor were those documents challenged. Therefore, there is noreason to disbelieve the police papers, which were produced andproved by the petitioner during her examination-in-chief. All thosedocuments were exhibited, and therefore, there is no reason to discard J-FA-264,265-17.odt 22/35them. On the contrary, it is pertinent to note that the exhibiteddocuments can be read in evidence in the absence challenge to thesame; therefore, I do not find substance in the contention of thelearned Advocate for the appellant that the contents of thosedocuments are not proved by the petitioner. 31. Similarly, the appellant in paragraph 6 of the written statementaverred that the driver of the Tata Sumo gave a dash to Dumper. Appellants’ failing to adduce evidence in that regard denotes that bothvehicles, i.e. Dumper and Tata Sumo, were involved in the accident. Tosubstantiate their contention, they could have examined the driver ofthe Dumper who was an eyewitness to the incident, but failing toexamine him leads to an adverse inference. Likewise, it is to be notedthat it was the best evidence that was available to the appellant todemonstrate that the driver of the Dumper was not rash and negligentto cause the accident. Apart from this, the petitioner No.1 in hertestimony has categorically deposed that the accident occurred due torash and negligent driving of the drivers of Dumper and Tata Sumo; however, her testimony neither denied nor challenged, as such, there isno reason to disbelieve her testimony in that regard. Moreover, appellants have not put the suggestion to PW-1 that the driver of theDumper was not responsible for causing the accident, nor givensuggestion that the driver of the Tata Sumo was solely responsible for J-FA-264,265-17.odt 23/35the accident and therefore, I do not find any substance in thatcontention that driver of Tata Sumo was negligent and responsible forthe accident.32. On perusal of the finding recorded by the learned Tribunal, itappears that learned Tribunal has observed that “the respondents havenot examined the drivers of Tata Sumo and Dumper and thereforerelying on the police papers which were produced and proved by PW-1in her testimony came to the conclusion that drivers of both thevehicles were negligent to cause the accident and therefore fastenedthe liability to the extent of 50% on the respondent Nos.1 and 2 jointlyand on respondent No.3 i.e. the appellant to the extent of 50%.”33. Having considered the evidence on record as well as the factthat none of the respondents has adduced evidence in support of theirdefence, on the contrary, the FIR on record categorically indicates thatdrivers of both the vehicles were responsible for the accident andtherefore registered the offence against both of them. Likewise, onperusal of the inquiry report about the accident and spot panchanamacategorically denotes that drivers of both the vehicles were rash andnegligent while driving the vehicles, and therefore, the accidentoccurred due to their negligence. Furthermore, it is not in dispute thatboth vehicles were involved in the accident. None of the parties has J-FA-264,265-17.odt 24/35examined the eyewitness to the accident. Thus, having considered theabove discussion, I do not find any perversity in the finding recordedby the Tribunal that drivers of both vehicles were responsible forcausing the accident, as well as the law laid down/observations madein the judgments relied on by the appellant are hardly of anyassistance in support of their submissions. Consequently, I answer pointNo.2 in the negative.34. Point No.3 The learned Advocate for the appellant further advanced herargument that the appellant has given compassionate appointment tothe son of the deceased, i.e. Petitioner/claimant No.2 Pritesh. Therefore, he cannot be said to be a dependent on the deceased whileconsidering the claim of the petitioners. In that regard, she has drawnmy attention to paragraph 8 of the written statement as well as thecross-examination of PW-1 Anita, who, in her testimony, admitted thatthe appellant has given an appointment to her son on compassionategrounds and his salary was around Rs. 25,000/- per month. Pointingout paragraph 22 of the impugned judgment, it was submitted thatwhile considering the fact, the learned Tribunal erred in holding thatall the petitioners were dependent on the deceased and therefore thedetermination of the grant of compensation is incorrect. However, shedoes not dispute that the deceased was earning Rs. 3,30,888/- per J-FA-264,265-17.odt 25/35annum and after deduction of income tax and profession tax, thus, thenet salary comes to Rs. 3,23,862/- p.a. 35. On the other hand, learned Advocate for the respondentInsurance Company argued that in view of the observations made inparagraphs 18 and 19 of National Insurance Company Ltd. vs. Rekhabenand ors. (supra), the amount earned by the claimants fromcompassionate appointments cannot be deducted from the quantum ofcompensation receivable by them under the Act, and therefore, sheurged that it would not be appropriate to deduct the amount ofquantum receivable to petitioner/claimant No.2, Pritish, on account ofcompassionate appointment.36. In response to that, learned Advocate for the appellantspointed out paragraph 19 of the very same judgment in Rekhaben andors (supra) and submitted that in the said matter, since the tortfeasor,i.e, insurance Company has not offered the compassionateappointment, therefore it was held that financial benefit of thecompassionate employment is not liable to be deducted, however thefacts at the case at hand are distinct than the above case, therefore sheurged that petitioner/claimant No.2 cannot be considered asdependent on the deceased. J-FA-264,265-17.odt 26/3537. Having heard the above arguments, deliberations and legalposition, even for the sake of argument if it is assumed that claimantNo.2 was not dependent on the deceased, in that eventuality also itwould not change the deduction under the head of personal expensesof deceased since as per the settled position of law if two or threedependents are there, then 1/3rd amount of income has to be deductedtowards personal expenses of the deceased. Here, three petitionershave filed a claim petition and are claiming compensation. Even ifpetitioner No. 2 is excluded from the category of dependents, in thatcase, two petitioners/claimants are also dependent on the deceased. Insuch an eventuality, 1/3 of the amount has to be deducted towards thepersonal expenses of the deceased. 38. Considering the facts above and the position of law, I do notfind substance in the contention of the learned Advocate for theappellant that if claimant No.2 is excluded from the category ofdependent, it would reduce/change the compensation granted to theclaimants. 39. The next point for consideration is that, undisputedly, petitioners/claimants have not preferred any cross-objection orcounter appeal against the impugned judgment. However, in view ofthe mandate laid down in Surekha w/o Rajendra Nakhate and ors. vs. J-FA-264,265-17.odt 27/35Santosh s/o Namdeo Jadhav and ors. (2021) 16 SCC 467 and Sangita Aryaand ors. vs. Oriental Insurance Company Ltd. And ors. (2020) SCC 327 it iswell-settled that in the matter of insurance claim compassion inreference to motor accident, the court should not take hyper technicalapproach and ensure that just compensation is to be awarded to theaffected person or the claimants even in absence of filing of the appealor cross-objection by the claimants and therefore in my view, non-filingof appeal or cross-objection would not affect the right of the claimantsof getting just compensation.40. Lastly, the learned Advocate for the appellants submitted that, as per paragraph 55 of the judgment in National Insurance Co. vs. PranaySethi (2017) 16 SCC 680, the Court must award “just compensation”and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard and notas a bonanza. However, she is not disputing the mandate laid down in“Pranay Sethi’s case. 41. I have gone through the impugned judgment and award. Inparagraphs 20, 21 and 22, the learned Tribunal has considered the ageand income of the deceased and, after deduction towards income taxand profession tax and after considering the same, held that thedeceased was earning an amount of Rs. 3,23,862/- per annum. Pursuant to the judgment in Rajesh and ors. vs. Rajbir Singh and ors. J-FA-264,265-17.odt 28/352013 (3) T.A.C. 697 (S.C.), the learned Tribunal awarded 15%compensation under the head of future prospects, which was alsofollowed in Pranay Sethi’s case. It awarded Rs. 50,000/- towards theconsortium and Rs. 25,000/- each to petitioner Nos. 2 and 3 towardslove and affection and Rs. 25,000/- towards funeral expenses. Rs.25,000/- towards loss of estate.42. It is pertinent to note that the Constitution Bench of theHon’ble Apex Court in Pranay Sethi dealt with the various aspects andheads under which compensation is to be awarded in a death case. It isimportant to note that the learned Advocate for the appellant does notdispute the mandate laid down in “Pranay Sethi’s case. However, theTribunal has not awarded an amount of compensation as mandated bythe judgment of the Constitutional Bench in Pranay Sethi’s case. Thatbeing so, in my opinion, the claimants are entitled to get thecompensation as per the mandate laid down in Pranay Sethi’s case. Apart from this, it is to be noted that the M.V. Act is a beneficiallegislation aimed at providing relief to the victims or their families, incases of genuine claims.In First Appeal No.264/2017 :43.Thus, in view of the settled positions of law laid down inPranay Sethi, the claimants are entitled to get the compensation asunder : J-FA-264,265-17.odt 29/35Age53 yearsDependents3 or even assuming 2 dependents. Gross IncomeIncome Tax + Professional TaxNet IncomeRs 3,30,888/- p.a.Rs 7,020/- p.a.Rs 3,23,862/- p.a. Income towards Future Prospects15%Multiplier11Sr. No.Compensation HeadsAmount Awarded(i)Net IncomeRs 3,23,862 /-p.a.(ii)After deduction towards personal expenses as 3 dependents (1/3)Rs 1,07,954/-(Rs 3,23,862- Rs 1,07,954 = Rs 2,15,908/-)(iii)Towards Future Prospects, as age is between 50-60 (15%)Rs 32,386/-(iv)MultiplicandRs 2,48,294/-(2,15,908+ 32,386)(v)Multiplier as age is between 51-5511(vi)Loss of Income of the deceasedRs 27,31,234/-(2,48,294 x 11)(vii)Compensation to be awarded (A)Rs 27,31,234/-Sr No.Conventional HeadsAmount(i)Funeral Expense ( 15,000 with 10% increaseevery 3 years from 2017)Rs 18,150/-(ii)Loss of Estate (15,000 with a 10% increase every 3 years from 2017)Rs 18,150/-(iii)Loss of Consortium to each of 3 Dependents (40,000 with 10% increase every 3 years from 2017)Rs 1,45,200/-(48,400 x 3)(iv)Compensation under Conventional Head (B)Rs 1,81,500/-Total CompensationTotal Compensation to be Awarded (A+B)Rs 27,31,234 /- + Rs1,81,500/-= Rs 29,12,734/- J-FA-264,265-17.odt 30/3544. As per the mandate laid down in Pranay Sethi’s case, theclaimants are entitled to get compensation of Rs.29,12,734/-.However, the learned Tribunal has awarded the total compensation ofRs. 28,81,000/-. [{i.e. owner and insurer of Tata Sumo are liable topay 50% amount, (Rs. 14,40,500/-) and respondent No.3, i.e.appellants, are liable to pay 50% amount (Rs. 14,40,500/-) to theclaimants.} {The amount of Rs. 6,12,360/- paid by the appellants tothe claimants under the Act of 1923 is liable to be deducted from Rs.14,40,500, then Rs.8,28,140/- (Rs.14,40,500 - Rs.6,12,360/-=Rs.8,28,140/-) is liable to pay by the appellant to the claimants.} ]There is a difference of Rs. 31,734/-. The same is rounded to Rs.32,000/-. It also appears that as per the order of the Tribunal, respondent Nos. 1 and 2, i.e. owner and insurer of Tata Sumo, areliable to pay 50% amount, and respondent No.3, i.e. appellants, areliable to pay 50% amount to the claimants. In First Appeal No.265/2017 :45. It is to be noted that in this case, no employment oncompassionate grounds was given to the legal representatives of thedeceased, so the question of deduction of compensation orconsideration of the exclusion of a dependent does not arise at all. J-FA-264,265-17.odt 31/3546.Thus, in view of the settled positions of law laid down inPranay Sethi, the claimants are entitled to get the compensation asunder :Age52 yearsDependents4Gross IncomeIncome Tax + Professional TaxNet IncomeRs 3,32,844/- p.a.Rs 7,020/- p.a.Rs 3,25,824/- p.a.Future Prospects15%Multiplier11Sr. No.Compensation HeadsAmount Awarded(i)Net IncomeRs 3,25,824 /-p.a.(ii)After deduction towards personal expenses as 4 dependents (1/4)Rs 81,456/-(Rs 3,25,824- Rs 81456 = Rs 2,44,368/-)(iii)Towards Future Prospects, as age is between 50-60 (15%)Rs 36,655/-(iv)MultiplicandRs 2,81,023/-(2,44,368+ 36,655)(v)Multiplier as age is between 51-5511(vi)Loss of Income of the deceasedRs 30,91,253/-(2,81,023 x 11)(vii)Compensation to be awarded (A)Rs 30,91,253/-Sr No.Conventional HeadsAmount(i)Funeral Expense (15,000 with 10% increase every 3 years from 2017)Rs 18,150/-(ii)Loss of Estate (15,000 with a 10% increase every 3 years from 2017)Rs 18,150/-(iii)Loss of Consortium to each of 4 Dependents (40,000 with 10% increase every 3 years from 2017)Rs 1,93,600/-(48,400 x 4)(iv)Compensation under Conventional Head (B)Rs 2,29,900/- J-FA-264,265-17.odt 32/35Total CompensationTotal Compensation to be Awarded (A+B)Rs 30,91,253/- + Rs2,29,900/-= Rs 33,21,153/-47. As per the mandate laid down in Pranay Sethi’s case, theclaimants are entitled to get compensation of Rs.33,21,153/-.However, the learned Tribunal has awarded the total compensation ofRs.32,66,000/-. [{i.e. owner and insurer of Tata Sumo are liable to pay50% amount, (Rs.16,33,000/-) and respondent No.3, i.e. appellants, are liable to pay 50% amount (Rs.16,33,000/-) to the claimants.} {Theamount of Rs.5,70,700/- paid by the appellants to the claimants underthe Act of 1923 is liable to be deducted from Rs.16,33,000/- thenRs.10,62,300/- (Rs.16,33,000 - Rs.5,70,700/-=Rs.10,62,300/-) isliable to pay by the appellants to the claimants.} ] There is a differenceof Rs.55,153/-. The same is rounded to Rs.55,200/-. It also appearsthat as per the order of the Tribunal, respondent Nos.1 and 2, i.e.owner and insurer of Tata Sumo, are liable to pay 50% amount, andrespondent No.3, i.e. appellants, are liable to pay 50% amount to theclaimants. Apart from this it appears that the appellants as well asInsurance Company are liable to pay 50% compensation to theclaimants, the difference of which comes to Rs.27,600/- each alongwith interest accrued thereon from the date of petition till deposit ofamount by the Insurance Company as well as the appellants in theCourt within a period of eight weeks. J-FA-264,265-17.odt 33/3548. As per the contention of the learned Advocate for theInsurance Company, the Insurance Company has already deposited theawarded amount along with interest before the Tribunal and compliedwith the order of the Tribunal. Similarly, the learned Advocate for theappellants submitted that the appellants have also deposited thebalance amount of compensation in this Court on 06/05/2017. Apartfrom this, it appears that the appellants as well as Insurance Companyare liable to pay 50% compensation to the claimants, the difference ofwhich comes to Rs.16,000/- and Rs. 27,600/-each along with interestaccrued thereon from the date of petition till deposit of amount by theInsurance Company as well as the appellants in the Court within aperiod of eight weeks, in F.A. Nos. 264 and 265 of 2017, respectively.49. Having bestowed my anxious consideration on the abovedeliberation and analysis of the legal provisions, I do not findsubstance in the contention of the learned Advocate for the appellantsthat the appellants are not responsible for the payment of thecompensation amount or the judgment and award passed by thelearned Tribunal suffer from perversity to interfere in the appellatejurisdiction. On the contrary, it appears that the Tribunal has rightlyconsidered each element in detail and held that the appellants, owner, and insurer of Tata Sumo, jointly and severally to pay 50%compensation each. As a result, I do not find any illegality or J-FA-264,265-17.odt 34/35perversity in the impugned judgments and Awards. However, at thesame time, in view of the dictum in Pranay Sethi’s case, petitioners/claimants are entitled to get the enhanced compensation, and as per the decisions in Surekha and Sangita (supra), the claimantsare entitled to get the enhanced compensation to the extent ofRs.32,000/- and Rs.55,200/- respectively in total in both appeals. Tothat extent, the impugned judgment and award are required to bemodified. As such, the appeals are dismissed; however, the impugnedjudgment and award are modified to the extent of enhancement of thecompensation to the tune of Rs.32,000/- and Rs.55,200/- respectively. The appellants as well as the respondent - Insurance Company areliable to pay 50% compensation, i.e. Rs.16,000/- and Rs.27,600/-each, respectively, in both the appeals, along with interest thereonfrom the date of petition till deposit of amount by them in the Court. They are directed to deposit the said amounts in the court within eightweeks. After the deposit of enhanced compensation in the Court, petitioners/claimants are permitted to withdraw the same asapportioned in proportion to the impugned judgment. The rest of theimpugned judgment of the Tribunal is intact. Hence, I answer point No.(iii) and (iv) accordingly. Consequently, the appeals are dismissed withthe modification as mentioned above. No order as to costs. (ABHAY J. MANTRI, J.) J-FA-264,265-17.odt 35/35 At this stage, the learned Advocate for the appellants urged tostay the judgment and order till the appeal period is over. Having considered the facts and circumstances of the case andthe above discussion, in my view, it would be appropriate to grant astay to this judgment and order till the appeal period is over; accordingly, this judgment is stayed till the appeal period is over, subject to the deposit of the enhanced compensation amount alongwith accrued interest thereon as observed above, by the appellants inthe Court within a period of two months from today. On such adeposit, the petitioners/claimants are permitted to withdraw the sameas per the award. (ABHAY J. MANTRI, J.) Asmita