D.R Khanna, J.:— It is indeed unfortunate that this First Appeal against the rejection of the claim of the legal representatives of Gurdev Singh, deceased, who was killed on the evening of 20-4-1967 at Rohtak Road, Delhi, as a result of an accident caused by car No. DLJ-6212, is coming up for hearing after 17 1/2 years of the incident, and the discussion as hereinafter will show, the legal representatives were denied their substantial legitimate compensation by unwarranted, unsustainable and a sort of wooden approach adopted by Shri P.S Shukla, Motor Accident Claims Tribunal.
2. The legal representatives had sought Compensation of Rs. 80,000/-
3. Gurdev Singh was run over at about 5.30 P.M On 20.4.67 in front of Anup Service Station, Rohtak Road, Delhi when he was going on a cycle from his office to his home. Car bearing No. DLJ 6212 driven by Dharam Singh, respondent, came from the opposite direction, and went to the wrong side of the road and knocked him down. At that time he wag three steps aways from the left end of the road. It was, the refore, apparent that the accident took place by the act of rash and negligent driving by Dharam Singh, and Gurdev Singh was seriously injured when he was going on the cycle on almost extreme left side of the road. The Tribunal had after considering the entire evidence come to the opinion that the accident was the direct result of the rash and negligent driving of the ear, and after going through the same, I am firmly in agreement with the findings given. The evidence of the witnesses and the plan which was prepared displaying the place where the accident took place, and how the car had gone to the wrong side and then proceeded fairly ahead after knocking down Gurdev Singh, leave no manner of doubt in this regard. In fact, no appearance was made by Dharam Singh at the time of the hearing of this appeal, and the Insurance Company too did not assail, in any manner, the finding of fact attributing entire negligence to the car driver.
4. It is with regard to the disallowanoe of any compensation to the legal representatives that the arguments have been addressed. Gurdev Singh was 34 years of age when the accident took place, and he died on the next day as a result of the same in Willingdpn Hospital. He left behind his widow and three children between the ages 8 years and 13 years, and old parents who are now both over 80 years of age. They voluntarily stated that the compensation be paid to the widow and the children of the deceased,
5. At the time of his death, Gurdev Singh was employed as an electrical fitter in the Railways, and was drawing Rs. 230/- per month, It was also claimed by the legal representatives that he had some extra income by way of photography, and in this regard two witnesses were examined, namely, Ishar Dayal Sharma (P.W 15) and Ishar Singh (P.W 17), who stated that he had taken photographs at special functions at their house for which he was paid. In this manner, he was said to be earning Rs. 80/- per month,
6. The Tribunal took into aecount that the deceased would have normally lived upto the age of 65 years, but observed that it could not be said that he could have earned after his retirement from the service. The computable period during which he could have earned, was, therefore, taken to be 23 years only. The Tribunal next proceeded to compute the loss in salary which resulted from his death, and in doing so unwarrantedly reduced his salary of Rs. 230/- to half on the ground that the other half would have been spent by him on himself. Why he was treated so selfish was not explain-ed. The pecuniary loss computed at the rate of Rs. 115/- per month for 23 years was taken to be Rs. 31,740/-. From this were deducted the provident fund and gratuity which were obtained by the legal representatives from his employer, and the small savings that he or his wife had made during his life time. Another amount of Rs. 8,000/- which had been paid by the Railways as compensation to him was also deducted. Further deduction of pension paid to his widow, was also allowed. The sum total of all these was held to exceed the amount of Rs. 31,740/- which would have been payable as compensation under the Motor Vehicles Act, and as such the entire claim was rejected.
7. The Tribunal entirely misdirected itself when it proceeded on the premises that the deceased's salary would have remained static at Rs. 230/- per month all through his life. It is not understood why the elementary and well recognised concepts of increments which he was as a matter of course to get were ignored specially when officers from his department had appeared and deposed that he was a good worker and would have been promoted in due course. With the rise in the cost of living, pay scales have also been revised from time to time. Judicial note of the same should have been taken. Moreover, a technical hand as the deceased was could have earnings after his retirement as well. There has been longovity in the family as both the parents have crossed the age of 80 years.
8. Moreover, there was no justification for the Tribunal to have allowed deductions towards Provident Fund, gratuity, pension and other savings of the deceased which the legal representatives got after his death. They had come as a result of his service career and by dint of his own efforts and service put in. None of them could be attributed as compensation for causing his death by rash and negligent driving. It has not to be ignored that a right which was otherwise available under the common law for damages against tort-feasor was incorporated for expeditious disposal and by special Tribunals in the Motor Vehicles Act, so far as the injuries and deaths resulting from motor vehicles were concerned. The compensation payable is in the context of and resultant from their accidents. This compensation is apart from what the injured or the deceased or his legal representatives would have got, notwithstanding the accident. They, therefore, could not go to reduce the amount of compensation, nor operate to eliminate the same. Any view to the contrary may provide a licence to cause death by accident of any affluent person with immunity without inviting liability for damages/compensation. There is a clear distinction between what as a matter of course belonged to the deceased or which his legal representatives inherited in normal course, and a claim for compensation for wrongful causing of death of the deceased. The Punjab High Court in a Full Bench decision in Bhagat Singh Sohan Singh v. Om Sharma and others, 1983 A.C.J 203 observed that the intrinsic nature of benefits like the provident fund, family pension or gratuity is that they are the deferred fruits of satisfactory service, industry, thrift, contributions and foresight of the employee. Equally, these may be the necessary incidents, of statutory service rules, employment contracts, or beneficient legislation rooted in the employment of the deceased. To attribute these payments entirely to the fortuitous circumstance of the accident and the resultant death appears untenable. The amounts on their score, were therefore, not treated as in mitigation of damages payable by tort-feasors, and, therefore, were held as not deduction from the compensation payable under the Motor Vehicles Act. See in this regard two decisions of this Court as well in the cases Bhagwanti Devi and others v. Ish Kumar and others, 1975 A.C.J 56, and Satyawati Pathak v. Hari Ram others, 1983 A.C.J 424.
9. It is indeed distressing that the Tribunal has not taken into account the tremendous emotional loss of the veritable head of the family, which the legal representatives suffered on account of the death of Gurdev Singh. His wife who was in her early thirties, lost her husband. That was a loss which was invaluable from the point of view of any wife, more so in our country where widow marriage is hardly in vogue. The accident therefore, left behind a desolate and forlone widow. Similarly the young children lost the father's affection and guidance which would be worth any amount of compensation. The parents too got the shock of their lives in their old age. The consequences of mental and emotional agony and the breaking up of the family fabric could not be ignored in the computation of compensation.
10. Mr. Dhir appearing on behalf of the Insurance Company, has made reference to Section 110-AA of the Motor Vehicles Act in order to plead that since the legal representatives have already been paid Rs. 8,000/- by the employer of the deceased under the Workmen's Compensation Act, the compensation under the Motor Vehicles Act cannot be awarded. That section introduced w.e.f 2-3-1970 is to the following effect:—
“110-AA. Option regarding claims for compensation in certain cases:
Notwithstanding anything contained in the Workmen's Compensation Act, 1923, where the death of or bodily injury to any person gives rise to a claim for compensation under this Act and also under the Workmen's Compensation Act, 1923, the person entitled to compensation may claim such compensation under either of those Acts but not under both.”
11. The accident in the present case took place in the year 1967, and the right to claim compensation thus accrued then. The petition for compensation before the Motor Accident Claims Tribunal was also moved in June, 1967. This new provision of law coming into force in 1970, therefore, could not affect the rights already accrued. The legal representatives thus had no opportunity to exercise option under its provisions, and, therefore, they could not work to their detriment. Moreover, this section covers those cases only in which death or injury is caused to a workman by accident arising out of or in the course of employment. The liability under the Workmen's Compensation Act results from the mere incidence of employment and is independent of any neglect or wrongful act on the part of the employer. The same springs out of the relationship of master and servant, and not out of tort. While for a claim for damages under the common law, one has to establish the element of negligence in order to prove the tortious liability of the employer, in the case of a claim under the Workrren's Compensation Act, the liability is statutory. In each case the right of compensation or dan ages is rooted in a different legal concept. Ordinarily, it could have been possible in such cases for the claim to lie both under the common law as well as under the Workmen's Compensation Act. The legislature has, however, intervened to provide against the grant of relief twice over. (See in this regard Smt. Gayatri Devi v. Tani Ram and others, AIR 1976 Himachal Pradesh 75).
12. In cases where the right to compensation arises independent of the employment of the worker, as in the present case when he was knocked down by a third person while going on a cycle on the roadside off duty hours, the Workmen's Compensation Act does not come into play, and the right to claim compensation under the Motor Vehicles Act remains unaffected. It was altogether another m atter that the Railways paid Rs. 8,010/- to the legal representatives of their own. The legal representatives have categorically stated that they did not move specifically for grant of compensation under the Workmen's Compensation Act. Reliance by Mr. Dhip on the case Kanaria Overseas Corporation v. Damyanti Vyas and others, 1982 A.C.J 222 (Patna), in my opinion was misplaced inasmuch as in that case the death had resulted to the worker during the course of the discharge of his duties as such. Similarly, in National Insurance Co. Ltd. v. Harerrushna Sahu and others, 1977 A.C.J 512, the accident had taken place when the deceased was moving on the road during the course of performance of his duties. I am, however, unable to subscribe to the other observation made by the learned Judge in that case that right of compensation qua third parties who were not connected with employment at all, and whose negligence and rash act was not corelated to employment, is in any manner, abridged by the Workmen's Compensation Act.
13. It is relevant here to mention that there are limits imposed upto which compensation is payable under the Workmen's Compensation Act, None such exist under the Motor Vehicles Act, and in case larger compensation liability gets open under its provisions, and the accident was independent of employment there appears no reason why this right should get eliminated even if the employer has out of compassion or otherwise decided to Pay some compensation.
14. Considering the totality of circumstances therefore, I am of the opinion that the appellants ought to be and are allowed compensation of Rs. 50,000/-, It is ordered accordingly. This amount will carry interest at the rate of 9% per annum till realisation from the date of the filing of the petition before the Motor Accident Claims Tribunal. The appellants will be entitled to costs throughout Counsel's fee Rs. 500/-.