JUDGMENT A.K. Yog and Ghanshyam Dass,JJ.
1. Heard Dr. R.G. Padia, senior advocate, assisted by Sri A.K. Dubey, on behalf of appellants and Sri V.N. Agarwal, advocate, on behalf of claimant-respondents and perused the record.
2. One Dr. Siddharth Dwivedi, who was employed on ad hoc basis in the Chandra Shekhar Azad University of Agriculture and Technology, Kanpur (called 'the University'), while going on official duty from Kanpur to Fatehpur by University Jeep No. UHJ 6225, met with an accident on 28.6.1989 at 12.15 p.m. and received fatal injuries, as a consequence of which he died. The other companion of the deceased Dr. Siddhartha also received serious injuries. The Jeep was driven by the Driver employed by the University when it collided with Matador No. UGH 658, which was parked on the left side of the road.
3. We do not intend to burden the judgment by dilating the facts of the case since they are not in dispute. Dispute is with respect to the quantum of compensation.
4. Respondents before us, the widow, minor son, mother and father of deceased Dr. Siddhartha, filed claim petition-registered as Motor Accident Claim No. 135 of 1989, Smt. Vimal Dwivedi and Ors. v. Chandra Shekhar Azad University of Agriculture and Technology Kanpur and Ors., before Motor Accident Claims Tribunal, Fatehpur.
5. In the claim petition neither Insurance Company was impleaded nor any relief was claimed against them. Appellants filed their reply against the claim petition. Parties led their evidence as they desired. It may be noted that no issue was got framed by the appellants regarding non-impleadment of insurance company,
6. We find that the Tribunal, in its Judgment, has wrongly mentioned issue No. 2 as issue No. 3. The said issue reads :
"To what amount of compensation and from whom are the petitioners entitled?"
7. The Tribunal dealt the issues in detail taking all the relevant materials on record and all aspe.cts of the case into consideration and awarded compensation to the tune of Rs. 5,50,000 to be apportioned among widow, minor son and parents of deceased Dr. Siddhartha, as can be seen from award given by the Tribunal vide judgment and order dated November 10, 1995.
8. The aforesaid judgment is the subject-matter of challenge before us. Respondent-claimants filed cross-objection. It may be noted that the heirs of the deceased claimed amount of compensation to the tune of Rs. 17,41,600 and other incidental benefits.
9. Dr. R.G. Padia, Senior Advocate has made following three submissions before us :
"According to the learned counsel for the appellant Dr. Siddhartha Dwivedi was merely an ad hoc employee in the University and hence the income drawn wherefrom should not be taken into account. The submission of the appellants is that unless an employee is serving on regular basis there could not be any assurance of continuance and hence the remuneration derived from ad hoc appointment cannot be a valid criterion while determining compensation under Motor Vehicles Act."
10. At the outset, it may be mentioned that no such ground has been taken in the memorandum of appeal. Appellants cannot be permitted to raise such plea orally and that too at this belated stage. No such plea was raised or pressed before the Tribunal as there is no mention of the said argument and also not controverted by the University's counsel.
11. We adopt the observation of the court below and hold the view that it is not relevant whether a person is employed on ad hoc, temporary or regular basis ; what is relevant is not the nature of employment or what he earned was as 'ad hoc' or regular employee. Even a daily wager can claim compensation what he earns on daily basis. What the deceased could earn though employed on ad hoc basis indicates his capacity and future loss of earning. In the Instant case, deceased was a highly qualified person and working as scientist. He held 'Doctorate' decree.
12. It has come on record that wife of the deceased was given appointment as Clerk in the University on temporary basis. Assuming that Smt. Vimal Dwivedi wife of the deceased was given appointment as noted above but the same cannot be a relevant consideration to assess the compensation under Motor Vehicles Act.
13. Smt. Vimal Dwivedi earns out of her own personal volition. Appellants have not brought material to show that her appointment was of 'compensatory nature' or it was made with clear indication to her that the amount she will earn will be deducted from compensation amount, if any.
14. In view of the above, we find no justification for deducting any amount on this score from the compensation otherwise payable to the claimants.
15. Appellants further argued that claimant should have impleaded Insurance Company. The argument has no substance, whatsoever. Inasmuch as no issue was got framed before Tribunal, apart from the fact that University did not disclose in its objection that vehicle in question was insured.
16. The next submission made on behalf of the appellants is with regard to the age of the deceased Dr. Siddhartha.
17. Smt. Vimal Dwivedi, had claimed age of her deceased husband at the time of accident about 30 years. The Tribunal has, however, proceeded that the age of deceased Dr. Siddhartha cannot be more than 35 years and on that basis it calculated compensation. Since deceased Dr. Siddhartha was employed in the University we take judicial notice of the fact they must have been in possession of necessary documents including High School Certificate, and it can be easily filed by the University to show the correct age of Dr. Siddhartha. The best evidence, not having been filed by the University in respect of its objection raised before us, we do not allow the same to be entertained.
18. It is argued next that interest, if any, admissible should be calculated w.e.f. date of this judgment since award was stayed by the interim order. We are unable to agree with the said submission. Interim order was obtained by the appellants and it was extended at their instance. Claimants cannot be made to suffer on that score.
19. Even if interest was not claimed it is permissible in law as has been awarded by the Tribunal. No illegality has been committed by the Tribunal in awarding the same.
20. Coming to the cross-objection filed on behalf of the claimants, we find the claimants through cross-objection urged that dependency at the rate of Rs. 2,200 per month is not correct and interest at the rate of 12% instead of 9% should have been awarded. As far as the question of dependency of Rs. 2,200 is concerned, there is no illegality in the judgment of the Tribunal which had been arrived at the by Tribunal, after taking into account relevant pleadings and record and question of enhancement of interest does not arise. We find that Tribunal had rightly awarded 9% interest. Accordingly, cross-objection has no merit.
21. First appeal from order has no merit and it is, accordingly, dismissed.
22.Appellants are directed to deposit balance amount within six weeks of the receipt of this judgment in the concerned Tribunal and the claimant shall be entitled to withdraw the same as per direction contained in the award.
23. No order as to costs.