JUDGMENT Bhawani Singh, C.J.

1. Two appeals (First Appeal No. 407 of 1998 - Nasimbanu, widow of Sirajuddin Amruddin Kazi and Ors. v. Ramjibhai Bachubhai Ahir and Ors., for enhancement of compensation and First Appeal No. 3656 of 1998 - The New India Assurance Company Limited v. Nasimbanu, widow of Sirajuddin Amruddin Kaji and Ors., for setting aside the award dated 30.8.1997 passed by the MACT, Kheda at Nadiad - MACP No. 372/88) are proposed to be disposed of by this judgment.

2. Shortly stated, Sirajuddin Amruddin Kazi (deceased) was driver of Tanker bearing Registration No. GTB-6374 of Kavina Transport Company owned by Ramjibhai Hirabhai Ahir (respondent-2 in FA 407/98) and insured with the New India Assurance Company Limited. Accident took place on 23.12.1987 at Boriyavi village when deceased was going from Ahmedabad to Vadodara and the offending vehicle Truck bearing Registration No. GQY-4478, driven by Ramjibhai Bachubhai Ahir (respondent-1 in FA 407/98) dashed against the tanker driven by Sirajuddin Amruddin Kazi. As a result of this accident, deceased (33) died leaving behind the claimants Nasimbanu (widow) and two minor children Sadiq Sirajuddin Kazi and Shabana Sirajuddin Kazi. Claim for compensation of Rs.3,50,000/= with interest is made. Allegation is that the offending vehicle was driven rashly and negligently, otherwise, accident could not have taken place. Deceased was the sole bread winner for the family and after his death, family is facing starvation.

3. Owner of the offending vehicle did not file written statement nor appeared before the Claims Tribunal. Contesting opponent is Insurance Company with which the offending truck was insured. This opponent has not admitted facts, therefore, denied the claim. Consequently, the Claims Tribunal framed issues on 29.6.1996, sought evidence and decided that allegations were sustainable. Accident had taken place in which deceased died leaving behind the claimants. They have been held entitled to compensation of Rs.2,12,000/= carrying interest at the rate of 12% p.a. with effect from 7.2.1997. Against this award, both the parties have filed appeals. Claimants seeking more compensation and Insurance Company praying for setting aside the award.

4. Heard learned counsel for the parties, record perused. First we take First Appeal No. 3656 of 1998 filed by the New India Assurance Company Limited. Ms.Lilu Bhaya, learned counsel for the appellant-New India Assurance Company Limited, contends that claimants filed petition under the Workmen's Compensation Act, 1923, claiming compensation for the death of deceased. They appeared and sought compensation of Rs.80,000/=. Therefore, initiation of application under Section 110A Motor Vehicles Act, 1939 is not maintainable under Section 110AA thereof and Section 3, sub-section 5 of the Workmen's Compensation Act, 1923. She also submits that in case this Court holds that application is maintainable, then amount of Rs.80,000/= paid under the Workmen's Compensation Act, 1923, be deducted from the amount of compensation awarded by the Claims Tribunal under the Motor Vehicles Act, 1939. Further submission is that claimants committed delay in prosecuting the petition, therefore, interest should not be made payable by the Insurance Company.

Shri M.C. Bhatt, learned counsel for the claimants, submits that appeal by Insurance Company is not maintainable because the appellant has challenged the quantum of compensation. Mr.Lilu Bhaya submits that there is no challenge to quantum, challenge is to jurisdiction of the Claims Tribunal to entertain the petition after the claim has been decided by the Workmen's Compensation Commissioner, therefore, the appeal is maintainable.

Relevant provisions of the WC Act, 1923 and the MV Act, 1939 which have been referred to and relied upon by the learned advocates while making their submissions are reproduced as under:

"3(5) Nothing herein contained shall be deemed to confer any right to compensation on a workman in respect of any injury if he has instituted in a Civil Court a suit for damages in respect of the injury against the employer or any other person; and no suit for damages shall be maintainable by a workman in any court of law in respect of any injury- (a) if he has instituted a claim to compensation in respect of the injury before a Commissioner; or (b) if an agreement has been come to between the workman and his employer providing for the payment of compensation in respect of the inquiry in accordance with the provisions of this Act."

"19. Reference to Commissioners.- (1) If any question arises in any proceedings under this Act as to the liability of any person to pay compensation (including any question as to whether a person injured is or is not a workman) or as to the amount or duration of compensation (including any question as to the nature or extent of disablement), the question shall, in default of agreement, be settled by a Commissioner.

(2) No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by a Commissioner or to enforce any liability incurred under this Act." Relevant Sec. 110-A, 110AA and 110-C (2A) of the MV Act, 1939 and sec. 149 of the MV Act, 1988 are reproduced as under:

110A. Application for compensation (1) An application for compensation out of an accident of the nature specified in sub section (1) of section 110 may be made-

(a) by the person who has sustained injury; or

(b) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or

(c) by any agent duly authorized by the person injured or all or any of the legal representatives of the deceased, as the case may be;

Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be mad on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.

(2) Every application under sub section (1) shall be made to the Claims Tribunal having jurisdiction over the area in which the accident occurred, and shall be in such form and shall contain such particulars as may be prescribed.

(3) No application for compensation under this section shall be entertained unless it is made within six months of the occurrence of the accident:

Provided that the Claims Tribunal may entertain the application after the expiry of the said period [six months] if it is satisfied that the applicant was prevented by sufficient cause from making the application in time."

"110AA. Option regarding claims for compensation in certain cases.- Notwithstanding anything contained in the Workmen's Compensation Act,1923, where the death 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.

110-C.

2-A. Where in the course of any inquiry, the Claims Tribunal is satisfied that-

(i) there is collusion between the person making the claim and the person against whom the claim is made, or

(ii) the person against whom the claim is made has failed to contest the claim, it may for the reasons to be recorded by it in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall there upon have the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made."

"149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.- (1) If, after a certificate of insurance has been issued under sub section (3) of section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as is required to be covered by a policy under clause (b) of sub section (1) of section 147 being a liability covered by the terms of policy or under the provisions of section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.

(2) No sum shall be payable by an insurer under sub section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-

(a) there has been a breach of a specified condition of the policy being one of the following conditions, namely

(i) a condition excluding the use of the vehicle-

(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or

(b) for organized racing and speed testing; or

(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or

(d) without side car being attached where the vehicle is a motor cycle; or

(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or

(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion or

(b) that the policy is void on the ground that it was obtained by the non disclosure of a material fact or by a representation of fact which was false in some material particular.

(3) Where any such judgment as is referred to in sub section (1) s obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in sub section (1) as if the judgment were given by a Court in India;

Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in sub section (2).

(4) Where a certificate of insurance has been issued under sub section (3) of section 147 to the person by whom a policy has been effected, so much of the policy as purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in clause (b) of sub section (2) shall, as respects of such liabilities as are required to be recovered by a policy under clause (b) of sub section (1) of section 147, be of no effect.

Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub section shall be recoverable by the insurer from that person.

(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured by a policy exceeds the amount for which the insurer would apart from the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.

(6) In this section the expression "material fact" and "material particular" means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will take the risk and if so, at what premium and on what conditions, and the expression "liability covered by the terms of the policy" means a liability which is covered by the policy or which would be so covered but for the fact that the insurer is entitled to avoid or cancel or has avoided or cancelled the policy.

(7) No insurer to whom the notice referred to in sub section (2) or sub section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in sub section (1) or in such judgment as is referred to in sub section (3) otherwise than in the manner provided for in sub section (2) or in the corresponding law of the reciprocating country, as the case may be.

Explanation.- For the purposes of this section, "Claims Tribunal" means a Claims Tribunal constituted under section 165 and "award" means an award made by the Tribunal under section 168."

5. Giving considerations to these submissions, we find that contention of the Insurance Company is that amount of Rs.80,000/= paid to the claimants under the Workmen's Compensation Act, 1923, be deducted from the compensation paid under the Motor Vehicles Act, 1939. This is challenge to quantum of compensation, therefore, contention raised by appellant is not sustainable. In this case, the appellant Insurance Company has not obtained permission to contest the claim under section 110-C (2A) of the MV Act, 1939. In case permission is not sought for contesting the claim under section 110C(2A) of the Motor Vehicles Act, 1939, defences available to the Insurance Company are limited under Section 149, Motor Vehicles Act, 1988. Since challenge is to quantum, which is not available defence under this provision, it cannot be raised by the appellant. For these reasons, appeal by Insurance Company is not maintainable. See : National Insurance Co. Ltd., Chandigarh v. Nicolletta Rohtagi and Ors., AIR 2002 SC 3350 wherein the apex court has overruled the decision in United India Assurance Co. Ltd. versus Bhushan Sachdev, reported in 2002 ACJ page 333, referred to by Mr. Parikh. See: New India Assurance Co. Ltd. v. Smt. Tara Sundari Phauzdar and Ors., AIR 2004 Calcutta 1 Full Bench and National Ins. Co. Ltd. v. Challa Bharathamma and Ors. (2004) 8 SCC 517; Chinnama George and Ors. v. N.K. Raju and Anr. (2000 ACJ 777)].

Even otherwise, there is no force in the submissions raised by the learned counsel for the appellant-Insurance Company. Section 110A of Motor Vehicles Act, 1939 is applicable to a person who has two remedies against the joint tort feaser(s) while object of Section 3(5) of the Workmen's Compensation Act, 1923, is to save the employer from double jeopardy, meaning thereby, from multiplicity of litigation, one under the Workmen's Compensation Act, 1923, and other under the Motor Vehicles Act, 1939. Where a claimant can avail one remedy against the employer under the Workmen's Compensation Act, 1923, he is not debarred from raising / claiming compensation under the Motor Vehicles Act, 1939, against the tort feaser. Present is a case where claimants are receiving compensation from the employer who is statutorily bound to pay the same on the death of deceased being his Master. This is separate relationship and liability and has nothing to do with the liability of a tort feasor under the Motor Vehicles Act, 1939. In the claim petition before the Claims Tribunal, employer and insurer of Tanker are not party, therefore, no claim has been raised against them. Submission raised by the appellant, if accepted, would mean that claimants should feel satisfied with whatever is paid to them under the Workmen's Compensation Act, 1923, by the employer, and thereby, tort feaser escaping liability under the Motor Vehicles Act, 1939, which remedy is independently available to the claimants as third party qua the offending vehicle.

Chief Justice Shri R.S. Pathak (as His Lordship then was) speaking for the Division Bench of High Court of Himachal Pradesh in Smt. Gayatri Devi v. Tani Ram and Ors. (AIR 1976 HP 75) said in paragraphs 13, 14, and 15 that:

"13. In Radhabai Bhikaji v. Baluram Daluram, 1970 Acc CJ 403 (M.P.) the Madhya Pradesh High Court held that duplication of proceedings occasioned by a claim instituted under the Workmen's Compensation Act and a claim filed under the Motor Vehicles Act was intended to be avoided and therefore, Section 3(5) of the Workmen's Compensation Act was enacted. With great respect, it seems difficult to accept the reasons which have found favour with that Court. When Section 3(5) of the Workmen's Compensation Act was enacted, the Legislature could not have had in mind the Motor Vehicles Act, which was enacted in 1939. Indeed, in 1923, there was not statute which provided for any other tribunal for entertaining claims in respect of such injuries or death. None has been pointed out to us. It seems that when Section 3(5) of the Workmen's Compensation Act was enacted, the Legislature could have had in mind the ordinary courts only as an alternative forum for entertaining a claim for damages. It will be noted in particular that Section 3(5) speaks of a `suit' and as has been well settled a suit is `a civil proceeding instituted by the presentation of a plaint'. That was laid down by the Privy Council in Hans Raj Gupta v. Dehra Dun Mussoorie Electric Tramway Co. Ltd., AIR 1933 PC 63. A proceeding for compensation made under the Workmen's Compensation Act or under the Motor Vehicles Act cannot be confused with a suit. That ingredient of Section 3(5) has apparently not been noticed by the learned Judges in the cases cited before us. Moreover, when the Madhya Pradesh High Court in Radhabai Bhikhaji (supra) spoke of a duplication of proceedings it was apparently not pointed out to the learned Judges that there is no duplication in the true sense, and that the claim under the Workmen's Compensation Act is based on a statutory liability while that under the Motor Vehicles Act rests on liability in tort. In Shardaben v. M.I. Pandya, 1971 Acc CJ 222 = (AIR 1971 Guj 51) the Gujarat High Court identified Claims Tribunal as a court, and that is also the view which appears to have been taken by the Madhya Pradesh High Court in Krishnan Gopal v. Dattatraya, 1971 Acc CJ 372 = (AIR 1972 Madh Pra 125) and again in Mangilal v. Union of India, 1973 Acc CJ 352 = (AIR 1974 Madh Pra 159) (FB). Reliance has been placed by the respondents on Jaswant Rai v. National Transport & General Co. Ltd., 1972 Acc CJ 21 (Punj), but in that case it was not specifically considered that a claim could not lie directly under the Workmen's Compensation Act if a claim had already been made under the Motor Vehicles Act. If the decision in that case can be construed as the respondents would have it, I regret I am unable to agree with the law laid down by it. Following the view taken by the Madhya Pradesh High Court in Radhabai Bhikaji (supra), the Mysore High Court held in Yellubai Torappa Kadam v. M/s. Mujawar & Co., 1973 Acc CJ 242 (Mys) that a Claims Tribunal under the M.V. Act could be described as a `court of law' in the sense used in Section 3(5) of the Workmen's Compensation Act, and therefore, a claimant could file a claim either under the Workmen's Compensation Act or under the Motor Vehicles Act, but not under both. The view proceeds on the assumption that because Section 110-F excludes a civil court from adjudicating on claims falling within the jurisdiction of the Claims Tribunals, it is intended that Claims Tribunals could substitute for civil courts and can therefore be regarded as `courts of law'. With respect, the assumption is not justified. The purpose of Section 110-F of the Motor Vehicles Act has already been discussed above, and in my opinion the exclusion of the civil court does not make a Claims Tribunal a court of law, notwithstanding that the Claims Tribunal exercises some of the powers of a civil court under the Code of Civil Procedure. I may also add that, as was observed by the Madhya Pradesh High Court in Radhabhai Bhikaji (supra), there is no material distinction relevant to the point before us between the expression `civil court' and the expression `court of law' used in Section 3(5) of the Workmen's Compensation Act.

14. Having regard to the manner in which the law has developed, to which reference has already been made, I find myself unable to accept the proposition that a claimant, to whom Section 110-AA of the Motor Vehicles Act does not apply, cannot claim compensation both under the Workmen's Compensation Act and the Motor Vehicles Act.

15. I am of the opinion that neither Section 3(5) nor Section 19 of the Workmen's Compensation Act operates as a bar to the consideration of the claim made by the appellants under the Motor Vehicles Act. That claim was maintainable before the Claims Tribunal, and therefore the present appeal is maintainable. The institution of a claim under the Workmen's Compensation Act does not bar the present appeal."

Similar view has been taken by the Division Bench of this Court (Coram : R.C. Mankad & S.A. Shah, JJ) in Superintendent of Post Offices, Rajkot and Ors. v. Pratap Ghelabhai Maru and Ors. [1987 ACJ 674]. Relevant paragraph 3 of the said judgment is reproduced as under:

"3. Second ground which is urged on behalf of the appellant is that since the claimant has received compensation under the Workmen's Compensation Act, it is not open to him to claim compensation or damages from the appellants. We do not find any substance in this argument also. It is true that under section 110AA of the Motor Vehicles Act, the claimant could not have claimed compensation under the Workmen's Compensation Act and also damages from the owner and insurer of auto rickshaw. So far as the owner of auto rickshaw was concerned, the claimant had to make a choice either to claim compensation under the Workmen's Compensation Act or to claim damages under the general law. However, the question of making such election does not arise so far as third party is concerned. Claimant could not have claimed any compensation from the appellant under the Workmen's Compensation Act. Therefore, there is no question of making any choice as urged on behalf of the appellant. Reliance was sought to be placed on a decision of this court in Premier Insurance Co. v. Gambhirsing AIR 1975 Gujarat 133, in support of the argument that claimant is not entitled to claim damages he having obtained compensation under the Workmen's Compensation Act. This decision on which reliance is placed has no application to the facts of this case. That was a case in which two vehicles were not involved in the accident. The claimants in rash and negligent driving of motor vehicles driven by the driver employed by the owner who had engaged them as labourers. It was in the background of the facts which obtained in that case, that the court held that the claimants had to choose between two remedies available to them - one under the Workmen's Compensation Act and other under the general law. Therefore, the mere fact that the claimant has obtained compensation under the Workmen's Compensation Act does not disentitle him from claiming compensation or damage from the appellants. Therefore, the second ground urged on behalf of the appellants also fails."

In National Insurance Company Ltd. v. Philomina Mathew and Ors., AIR 1993 Kerala 226, Full Bench of the Kerala High court has held that if a claim for compensation arises under both the Acts, there is no doubt that the liability of the insurer is wider and not restricted to cases of insolvency, etc., mentioned in Section 14 of the WC Act, 1923. See also in case of Sharad Ganpat Deshmukh and Ors. v/s. Kunda Ashok Polade and Ors. reported in 2003 IV LLJ (Suppl) NOC 480, Bombay High Court.

This apart, contention as regards Section 3(5) of the Workmen's Compensation Act, 1923, has neither been raised either in the Written Statement nor in the memorandum of Appeal before this Court by the Insurance Company. As such, the opponents-claimants have no opportunity to meet the same. Consequently, it cannot be allowed to be raised at this stage. Even otherwise, if barred, it is recourse to Civil Courts stricto senso and not the Tribunals which came into existence in 1939 while the Workmen's Compensation Act in 1923. In Smt. Gayatri Devi v. Tani Ram and Ors., AIR 1976 Himachal Pradesh 78, it has been observed as under:

"11. Reliance was placed by the respondents on Section 19 of the Workmen's Compensation Act in support of the proposition that if an application for compensation is made under section 3 of the Workmen's Compensation Act, it is the Commissioner under that Act who alone has jurisdiction to decide the question and that the civil court is barred from dealing with it. Section 19 provides.-

19. Reference to Commissioners.- (1) If any question arises in any proceedings under this Act as to the liability of any person to pay compensation (including any question as to whether a person injured is or is not a workman) or as to the amount or duration of compensation (including any question as to the nature or extent of disablement), the question shall, in default of agreement, be settled by a Commissioner.

(2) No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by a Commissioner or to enforce any liability incurred under this Act."

To my mind, section 19 refers to a liability arising by virtue of the Workmen's Compensation Act. Sub section (1) speaks of a proceeding under the Act. Such a proceeding relates to the statutory liability created under that act. and sub section (2) specifically mentions 'any liability incurred under this Act'. The liability adjudicated upon by Claims Tribunals under the Motor Vehicles Act is a liability founded in tort and falls outside the scope of Section 19 of the Workmen's Compensation Act."

[Also see Krishi Utpadan Mandli Samiti through its Secretary, Anand Nagar and Arvind Chaubey and Anr. [2003-I-LLJ 507].

Further, the question for determination is whether the amount of Rs.80,000/= awarded under the Workmen's Compensation Act, 1923, is liable to be deducted from the compensation paid under the Motor Vehicles Act, 1939? This question shall be considered when the question of enhancement of compensation is considered.

Further, it is found that Claim Petition was filed on 6.4.1988 and Written Statement has been filed on 22.8.1988. Thereafter, matter remained pending before the Tribunal till 1996. Issues were framed on 29.6.1996, deposition of claimants recorded on 7.2.1997, and second witness of claimants examined on 8.8.1997. The Insurance Company did not examine any witness in its defence. Award was pronounced on 30.8.1997. With this background we find that delay is from 22.8.1988 to 29.6.1996. It is not because of claimants. Rather, they represented to this Court on administrative side seeking direction to the Claims Tribunal to dispose of the matter at an early date. Consequently, claimants cannot be held responsible for delay, therefore, they are entitled to interest from 6.4.1988 at the rate allowed by the Claims Tribunal.

6. Now considering First Appeal No. 407 of 1998 filed by claimants for enhancement, the deceased was driver of oil tanker. He was earning Rs.1,000/= per month salary and Rs.30/= per day daily allowance as per the statement of widow apart from Rs.900/= for S.S. Carriers (partnership firm). There is no rebuttal to this claim. However, the Claims Tribunal accepts the salary of Rs.1,000/= but reduces the income from daily allowance to Rs.500/= per month on the ground that he may not be on outstation duty for all the thirty days and there being no satisfactory evidence of income from partnership firm. At the time of accident, deceased was 33 year old. He leaves behind widow and two minors. Salary of driver during 1987 could not be Rs.1000/=. Family could not survive on this amount. May be, the widow meant to say that she was receiving this amount from the husband. However, we take that he was receiving Rs.1000/= per month by way of salary. However, deduction of daily allowance is not justified since drivers, particularly of tankers/ trucks remain out day and night. Therefore, daily allowance being claimed should be allowed but not the income from partnership firm. This way, monthly income of deceased is taken Rs.1900/= per month.

Considered on the principles laid down by the Apex Court in Smt. Sarla Dixit and Anr. v. Balwant Yadav and Ors. (AIR 1996 SC 1274) and Division Bench decision of this Court in Ritaben alias Vanitaben and Anr. v. Ahmedabad Municipal Transport Service and Anr. (2000 ACJ 153), amount of compensation payable to the claimants, is computed thus; 1900x2 = 3800 (double of monthly salary); 3800+1900 = 5700 (add one month's salary); 5700/2 = 2850 (half of the above); deducting 1/3rd from 2850 comes to 1900; 1900 x 12 = 22800 (yearly income); 22800 x 17 = 387600 (multiplier as per schedule); 387600 + 20000 = 407600 (add Rs.2000/= under heads of pain, shock etc.) Therefore, the total compensation comes to Rs.4,07,600/=. It is submitted that claimants have claimed Rs.3,50,000/=, therefore, they are not entitled to more amount. We do not agree with this submission, particularly when it has been decided in catena of decisions by Apex Court that claimants are entitled to just compensation against the tort feasers, and it is the duty of the Court to assess the same. [See Nagappa versus Gurudayal Singh and Ors. (2003) 2 SCC 274]. Questions falling for examination in the present case have not been examined in Helen C. Rebello and Ors. v. Maharashtra State Road Transport Corporation [1999 ACJ 10], therefore, this decision is not applicable to the facts of this case.

Looking to all the facts and circumstances of the case, more so, the fact that deceased was a young man with good prospects for improvement in salary, left behind young widow and minor children with nothing to depend upon, compensation worked out be paid to them.

7. Examining the matter, it seems, amount has not been correctly worked out under the Workmen's Compensation Act, 1923, and paid to the claimants. Section 4(1)(a) is reproduced:

"4. Amount of compensation - (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:-

(a) Where death results from the injury an amount equal to fifty per cent of the monthly wages of the deceased workman multiplied by the relevant factor;

or an amount of eighty thousand rupees, whichever is more . . ."

Explanation I. - For the purposes of clause (a) and clause (b) 'relevant factor' in relation to a workman means the factor specified in the second column of Schedule IV against the entry in the first column of that Schedule specifying the number of years which are the same as the completed years of the age of the workman on his last birthday immediately preceding the date on which the compensation fell due.

Explanation II.- Where the monthly wages of a workman exceed four thousand rupees, his monthly wages for the purposes of clause (a) and clause (b) shall be deemed to be four thousand only

(c) Where permanent partial disablement resulted from the injury

(i) in the case of an injury specified in Part II of Schedule I, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury; and

(ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury;"

Looking to the definition of 'wages' under section 2(m) of the WC Act, 1923, wages includes any privilege or benefit which is capable of being estimated in terms of money, means all allowances including daily allowance. Taking the income at Rs.1900/= per month, compensation can be Rs.1,91,577/=.

Monthly wages : Rs.1900 Fifty percent thereof: Rs.950 Considering the age (33), relevant factor as mentioned in Schedule V of 201.66 would be applicable. Therefore 950x201.66 = Rs.191577/= The Workmen's Compensation Commissioner seems to have granted less compensation under Section 4 of the Workmen's Compensation Act, 1923, since the claimants are entitled to the amount whichever is more envisaged in Section 4(1)(a) of the said Act. That apart, Commissioner has not taken into consideration the default made by the employer in depositing the amount within one month from the date it fell due so imposing penalty and interest for late deposit under section 4A of the Workmen's Compensation Act. Relevant section 4A is as under:.

"4-A. Compensation to be paid when due and penalty for default : - (1) Compensation under Section 4 shall be paid as soon as it falls due.

(2) In cases where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and, such payment shall be deposited with the Commissioner or made to the workman, as the case may be, without prejudice to the right of the workman to make any further claim.

[(3) Where any employer is in default in paying the compensation due under this Act within one month from the date if fell due, the Commissioner shall -

(a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of twelve per cent, per annum or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government, by notification in the Official Gazette, on the amount due; and

(b) if, in his opinion, there is no justification for the delay, direct that the employer shall, in addition to the amount of the arrears, and interest thereon pay a further sum not exceeding fifty per cent of such amount by way of penalty :

Provided that an order for the payment of penalty shall not be passed under clause (b) without giving as reasonable opportunity to the employer to show cause why it should not be passed.

Explanation.- For the purposes of this sub-section, "scheduled bank", means a bank for the time being included in the Second Schedule to the Reserve Bank of India Act, 1934 (2 of 1934).

[(3A) The interest and the penalty payable under sub-section (3) shall be paid to the workman or his dependent, as the case may be.]]"

It is also contended that claimants offered undertaking before the Commissioner for Workmen's Compensation vide Application No. 149 of 1988 confining the claim to Rs.80,664/=. Therefore, no further compensation is payable to the claimants. It is found that claim under Motor Vehicles Act, 1939, is prior in point of time, filed on 6.4.1988. It was pending. Learned counsel for the claimants submits that the Workmen's Compensation Commissioner was approached on 20.7.1988 for payment of compensation under the Act. Therefore, a contract, which is unconscionable, defeats the provisions of law is neither enforceable nor creates bar against statute and statutory right. Claimants right to raise the claim under the two statutes has already been answered. Further, there is no substance in this contention also as the right of claimant cannot be set at naught by unconscionable bargain; undertaking is not against the offending owner of vehicle and its Insurance Company nor it could be entertained by the Commissioner. Therefore, deduction is not permissible. In these circumstances, it is open for the claimants to approach the Commissioner for more compensation as per Section 4(1)(a) read with Section 4-A of the Workmen's Compensation Act, 1923, in the light of observations made in the preceding part of the judgment or take such other legal steps which may be available to them, and Court/ Tribunal, Commissioner shall consider the matter and decide in accordance with law.

8. Therefore, the result of aforesaid discussion is that First Appeal No. 3656 of 1998 - The New India Assurance Company Limited v. Nasimbanu, widow of Sirajuddin Amruddin Kaji and Ors. - is rejected. First Appeal No. 407 of 1998 - Nasimbanu, widow of Sirajuddin Amruddin Kazi and Ors. v. Ramjibhai Bachubhai Ahir and Ors. is allowed. The claimants are held entitled for total compensation of Rs.4,07,000/= (enhanced compensation of Rs.1,95,000/=) payable with interest at the rate of 12% p.a. from 6.4.1988 till the date of payment. Rate of interest shall be applicable on the enhanced amount as well as original award. The respondents are directed to deposit compensation within a month. The Claim Tribunal will invest 75 % of the amount with interest accrued on it in any Nationalized Bank for a period of five years in the name of the claimant Nasimbanu Wd/o Sirajuddin Amruddin Kazi and the minors namely Minor Sadiq Sirajuddin Kazi and Minor Shabana Sirajuddin Kazi and shall pay 25 % of the amount with interest accrued on it to the claimant Nasimbanu Wd/o Sirajuddin Amruddin Kazi by way of an account payee cheque, on proper verification. Costs of this Court on parties. Interest accruing on the Fixed Deposit be paid to Claimant Nasimbanu Wd/o. Sirajuddin Amruddin Kazi monthly, quarterly or six monthly as demanded by her from Bank Manager.