In Helen C. Rebello (Mrs.) & Ors. v. Maharashtra State Road Transport Corporation and Anr., (1999)1 SCC 90, the question before the Supreme Court was whether the amount received under Life Insurance Policy was liable to be deducted on the principle of balancing the loss and gain. The Supreme Court referred to the Law of Torts by Fleming and differentiated between the amount received under the Life Insurance Policy and an Accident Insurance Policy. It was, thus held that the payment received under the Life Insurance Policy was not deductible whereas the payment received under the Personal Accident Insurance was deductible. The reason was that in case of payment received under the Accident Insurance Policy, the amount was receivable only on account of death in an accident and not otherwise, whereas in case of Life Insurance Policy, the amount was receivable irrespective of the death. Thus, the fact that the payment was made under an independent contract of insurance was not of much importance. Moreover, the use of the word "just" in Section 168 of the Act, confers wider discretion to the Claims Tribunal. The Claims Tribunal, therefore, has to see that the compensation awarded is neither niggardly nor a source of profit. Paras 26, 27, 28, 32, 33 and 34 of the report in Helen C. Rebello (supra) are extracted hereunder: IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
FIRST APPEAL FROM ORDER NO. 947 OF 1991
Smt. Lalita Rathore and another.
---Appellants
Versus
Shri Darshan Lal and others.
---Respondents
CORUM: HON'BLE MR. JUSTICE PRAKASH KRISHNA
HON'BLE MR. JUSTICE ARVIND KUMAR TRIPATHI (II)
Citation; 2014 (1) ALL M R (JOURNAl) 1
Raising an important question relating to determination of compensation amount under Motor Vehicles Act, 1988 (for brevity 'the Act), the present appeal is at the instance of claimants. Second Additional District Judge/Motor Accident Claims Tribunal (for brevity 'the Tribunal), Shahjahanpur by its judgment dated 9th September, 1991 passed in Motor Accident Claim Petition No. 47 of 1987 has found that death of Rajendra Kumar was caused due to rash and negligent driving of bus attached to the Uttar Pradesh State Road Transport Corporation but has awarded a sum of Rs.5000/- only as compensation for shock and suffering and denied any other amount on short ground as after death of Rajendra Kumar, his widow Smt. Lalita Rathore got compassionate appointment in place of her husband, there is no pecuniary loss to the claimants. The question which falls for determination in the present appeal is-- whether benefits received by way of compassionate appointment ought to have been taken into consideration while determining the just compensation as required under Section 168 of the Act, in the facts and circumstances of the case.
The facts may be noticed in brief.
Rajendra Kumar (deceased) was engaged as a motor driver and was in service of State Government at the relevant point of time. He on 8th July, 1987 while driving Jeep bearing registration No. U.G.K. 1551 carrying Dr. S.K. Dhawan, D.P. Singh, G.M. Industries, S.K. Agarwal, Manager Marketing Industries and A.N. Gupta, Lead Bank Officer met with a road accident at about 2:30 p.m. The Jeep was going from Shahjahanpur to Jalalabad. When it reached near Allah, a bus bearing registration no. U.G.K. 1551 which was coming from opposite direction dashed against the Jeep. The claim petition was filed with the allegations that the said bus was being driven rashly and negligently and it caused the accident. In the said accident, Rajendra Kumar received 14 antemortem injuries and he ultimately died in hospital after two days. He was getting pay around Rs.1,000/- per month and salary certificate was filed showing that he was getting Rs.1096/- per month. He was aged about 28 years at the time of death. A lump sum amount of Rs.4,00,000/- was claimed as compensation amount against the defendants.
In the said claim petition, Smt. Pachoo, mother of deceased, Smt. Lalita widow of deceased and Km. Rekha aged about three years, daughter of deceased, were claimants. Darshan Lal, owner of bus, its driver Ghaffar Hussain, National Insurance Co. Ltd with whom the bus was insured and U.P.S.R.T.C. were impleaded as defendants. The claim petition was contested by the respondents by filing separate replies. It was stated that the bus bearing registration No. U.G.K. 1551 was not being driven rashly and negligently. The bus driver was holding valid driving license and therefore, the Insurance Company is liable to pay compensation, if any, to the claimants.
On the pleadings of the parties, the following issues were framed for determination.
1. Whether the accident has taken place due to negligent driving of the bus U.P.O. 5966?
2. Whether the claim is too excessive?
3. Whether the claimants are entitled to recover the compensation amount and from whom?
The claimants examined eyewitness namely, Khushi Ram (P.W.-1) to prove the accident and involvement of the bus in question. He deposed that bus U.P.O. 5966 was coming with high speed and it dashed the Jeep and thus, caused road accident in which Rajendra Kumar received fatal injuries as also the fact that the said bus was being driven rashly and negligently. He has further deposed that after the accident he took injured Rajendra Kumar and other injured persons out from the Jeep and carried them through a truck to the hospital. The Tribunal has reached to the conclusion that the testimony of Khushi Ram who is an eyewitness of accident is worth reliable. In absence of any contrary material before us, findings recorded by the Tribunal under issue no. 1 deserves our acceptance and we do so.
Issue no. 2 is the material issue for the purposes of disposal of present appeal. Under this issue, the claimants asked for compensation amount of Rs.4,00,000/- without specifying the amounts on specific heads. The deceased was State Government employee and the pay certificate shows that he was getting a sum of Rs.1096/- per month as salary. The Tribunal was influenced by the fact that after death of Rajendra Kumar, his widow Smt. Lalita was given employment on daily wages initially at Rs.30/- per day which was increased to Rs.50/- per day and was permanently employed after about two months. She was drawing a sum of Rs.1130/- per month as salary. Her qualification is junior high school. The Tribunal has held that there is no pecuniary loss to the claimants due to employment given to the widow. The claimants are not entitled to receive any amount as compensation amount towards pecuniary loss. The pecuniary advantage has come by way of service to the widow of the deceased and she has been put in somewhat better position than her husband was as she is getting Rs.1130/- per month and will get increment every year being a permanently employee. On the other hand, the deceased must have been spending 1/3rd towards his personal expenses and would have been contributory only 2/3rd of his earning towards family. The Tribunal was of the view that the claimants are now in better financial position due to employment of the widow. It ultimately awarded a sum of Rs.5000/- on 'humanitarian ground'. The widow of deceased though has adequately been compassionated by providing her permanent service but she is entitled to get some amount for shock and suffering. So she can be given Rs.5000/- on this account.
Under Issue no. 3, Rs.5000/- has been given to the mother of deceased and widow each from owner of the bus.
Heard the learned counsel for the parties.
Learned counsel for the appellants submits that the Tribunal has erred in holding that there is no pecuniary loss to the claimants on account of death of Rajendra Kumar. The fact that widow has been given employment under (Dying in Harness) Rules is of no avail either to the owner of bus or to the Insurance Company. The said fact is wholly irrelevant so far as the determination of compensation amount as required under Section 166 of the Act is concerned.
In reply, learned counsel for the Insurance Company submits that controversy stands concluded by the judgment of the Apex Court in the case of Bhakra Beas Management Board versus Kanta Aggarwal (Smt.) and others, (2008) 11 SCC 366, against the claimants/appellants.
Considered the respective submissions of the learned counsel for the parties and perused the record.
Only question involved, as has been noticed in opening part of the judgment is whether in the facts and circumstances of the case, benefits received by way of compassionate appointment of the widow (appellant no. 1 herein) should be taken into consideration while determining just compensation as provided under Section 168 of the Act.
Section 168 of the Act enjoins a Claims Tribunal to determine the amount of compensation which is just and reasonable. It can neither be a source of profit nor should it be a pittance.
In State of Haryana v. Jasbir Kaur, (2003) 7 SCC 484, the Supreme Court held as under:
"7. It has to be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which is to be in the real sense "damages" which in turn appears to it to be "just and reasonable". It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be "just" and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. The courts and tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be "just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just" a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness, and non-arbitrary. If it is not so it cannot be just."
In Helen C. Rebello (Mrs.) & Ors. v. Maharashtra State Road Transport Corporation and Anr., (1999)1 SCC 90, the question before the Supreme Court was whether the amount received under Life Insurance Policy was liable to be deducted on the principle of balancing the loss and gain. The Supreme Court referred to the Law of Torts by Fleming and differentiated between the amount received under the Life Insurance Policy and an Accident Insurance Policy. It was, thus held that the payment received under the Life Insurance Policy was not deductible whereas the payment received under the Personal Accident Insurance was deductible. The reason was that in case of payment received under the Accident Insurance Policy, the amount was receivable only on account of death in an accident and not otherwise, whereas in case of Life Insurance Policy, the amount was receivable irrespective of the death. Thus, the fact that the payment was made under an independent contract of insurance was not of much importance. Moreover, the use of the word "just" in Section 168 of the Act, confers wider discretion to the Claims Tribunal. The Claims Tribunal, therefore, has to see that the compensation awarded is neither niggardly nor a source of profit. Paras 26, 27, 28, 32, 33 and 34 of the report in Helen C. Rebello (supra) are extracted hereunder:
"26. This Court, in this case did observe, though did not decide, to which we refer that the use of the words, "which appears to it to be just" under Section 110-B gives wider power to the Tribunal in the matter of determination of compensation under the 1939 Act. There is another case of this Court in which there is a passing reference to the deduction out of the compensation payable under the Motor Vehicles Act. In N. Sivammal v. Managing Director, Pandian Roadways Corpn. this Court held that the deduction of Rs 10,000 receivable as monetary benefit to the widow of the pension amount, was not justified. So, though deduction of the widow's pension was not accepted but for this, no principle was discussed therein. However, having given our full consideration, we find there is a deliberate change in the language in the later Act, revealing the intent of the legislature, viz., to confer wider discretion on the Tribunal which is not to be found in the earlier Act. Thus, any decision based on the principle applicable to the earlier Act, would not be applicable while adjudicating the compensation payable to the claimant in the later Act. 27. Fleming, in his classic work on the Law of Torts, has summed up the law on the subject in these words. This is also referred to in Sushila Devi v. Ibrahim:
"The pecuniary loss of such dependant can only be ascertained by balancing, on the one hand, the loss to him of future pecuniary benefit, and, on the other, any pecuniary advantage which, from whatever source, comes to him by reason of the death. ... There is a vital distinction between the receipt of moneys under accident insurance and life assurance policies. In the case of accident policies, the full value is deductible on the ground that there was no certainty, or even a reasonable probability, that the insured would ever suffer an accident. But since man is certain to die, it would not be justifiable to set off the whole proceeds from a life assurance policy, since it is legitimate to assume that the widow would have received some benefit, if her husband had pre-deceased her during the currency of the policy or if the policy had matured during their joint lives. The exact extent of permissible reduction, however, is still a matter of uncertainty...." (emphasis supplied)
x x x x x x x x x x x x x x x
28. Fleming has also expressed that the deduction or set-off of the life insurance could not be justifiable. When he uses the words "not be justifiable" he refers to one's conscience, fairness and contrary to what is just. In this context, the use of the word "just", which was neither in the English 1846 Act nor in the Indian 1855 Act, now brought in under the 1939 Act, gains importance. This shows that the word "just" was deliberately brought in Section 110-B of the 1939 Act to enlarge the consideration in computing the compensation which, of course, would include the question of deductibility, if any. This leads us to an irresistible conclusion that the principle of computation of the compensation both under the English Fatal Accidents Act, 1846 and under the Indian Fatal Accidents Act, 1855 by the earlier decisions, were restrictive in nature in the absence of any guiding words therein, hence the courts applied the general principle at the common law of loss and gain but that would not apply to the considerations under Section 110-B of the 1939 Act which enlarges the discretion to deliver better justice to the claimant, in computing the compensation, to see what is just. Thus, we find that all the decisions of the High Courts, which based their interpretation on the principles of these two Acts, viz., the English 1846 Act and the Indian 1855 Act to hold that deductions were valid cannot be upheld. As we have observed above, the decisions even with reference to the decision of this Court in Gobald Motor Service where the question was neither raised nor adjudicated and that case also, being under the 1855 Act, cannot be pressed into service. Thus, these courts by giving a restrictive interpretation in computation of compensation based on the limitation of the language of the Fatal Accidents Act, fell into an error, as it did not take into account the change of language in the 1939 Act and did not consider the widening of the discretion of the Tribunal under Section 110-B. The word "just", as its nomenclature, denotes equitability, fairness and reasonableness having a large peripheral field. The largeness is, of course, not arbitrary; it is restricted by the conscience which is fair, reasonable and equitable, if it exceeds; it is termed as unfair, unreasonable, unequitable, not just. Thus, this field of wider discretion of the Tribunal has to be within the said limitations and
the limitations under any provision of this Act or any other provision having the force of law..........." x x x x x x x x x x
32. So far as the general principle of estimating damages under the common law is concerned, it is settled that the pecuniary loss can be ascertained only by balancing on one hand, the loss to the claimant of the future pecuniary benefits that would have accrued to him but for the death with the "pecuniary advantage" which from whatever source comes to him by reason of the death. In other words, it is the balancing of loss and gain of the claimant occasioned by the death. But this has to change its colour to the extent a statute intends to do. Thus, this has to be interpreted in the light of the provisions of the Motor Vehicles Act, 1939. It is very clear, to which there could be no doubt that this Act delivers compensation to the claimant only on account of accidental injury or death, not on account of any other death. Thus, the pecuniary advantage accruing under this Act has to be deciphered, correlating with the accidental death. The compensation payable under the Motor Vehicles Act is on account of the pecuniary loss to the claimant by accidental injury or death and not other forms of death. If there is natural death or death by suicide, serious illness, including even death by accident, through train, air flight not involving a motor vehicle, it would not be covered under the Motor Vehicles Act. Thus, the application of the general principle under the common law of loss and gain for the computation of compensation under this Act must correlate to this type of injury or death, viz., accidental. If the words "pecuniary advantage" from whatever source are to be interpreted to mean any form of death under this Act, it would dilute all possible benefits conferred on the claimant and would be contrary to the spirit of the law. If the "pecuniary advantage" resulting from death means pecuniary advantage coming under all forms of death then it will include all the assets moveable, immovable, shares, bank accounts, cash and every amount receivable under any contract. In other words, all heritable assets including what is willed by the deceased etc. This would obliterate both, all possible conferment of economic security to the claimant by the deceased and the intentions of the legislature. By such an interpretation, the tortfeasor in spite of his wrongful act or negligence, which contributes to the death, would have in many cases no liability or meagre liability. In our considered opinion, the general principle of loss and gain takes colour of this statute, viz., the gain has to be interpreted which is as a result of the accidental death and the loss on account of the accidental death. Thus, under the present Act, whatever pecuniary advantage is received by the claimant, from whatever source, would only mean which comes to the claimant on account of the accidental death and not other forms of death. The constitution of the Motor Accident Claims Tribunal itself under Section 110 is, as the section states: "... for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, ...". 33. Thus, it would not include that which the claimant receives on account of other forms of deaths, which he would have received even apart from accidental death. Thus, such pecuniary advantage would have no corelation to the accidental death for which compensation is computed. Any amount received or receivable not only on account of the accidental death but that which would have come to the claimant even otherwise, could not be construed to be the "pecuniary advantage", liable for deduction. However, where the employer insures his employee, as against injury or death arising out of an accident, any amount received out of such insurance on the happening of such incident may be an amount liable for deduction. However, our legislature has taken note of such contingency through the proviso of Section 95. Under it the liability of the insurer is excluded in respect of injury or death, arising out of and in the course of employment of an employee."
x x x x x x x x x x x x x x x
34. This is based on the principle that the claimant for the happening of the same incidence may not gain twice from two sources. This, it is excluded thus, either through the wisdom of the legislature or through the principle of loss and gain through deduction not to give gain to the claimant twice arising from the same transaction, viz., the same accident. It is significant to record here in both the sources, viz., either under the Motor Vehicles Act or from the employer, the compensation receivable by the claimant is either statutory or through the security of the employer securing for his employee but in both cases he receives the amount without his contribution. How thus an amount earned out of one's labour or contribution towards one's wealth, savings, etc. either for himself or for his family which such person knows under the law has to go to his heirs after his death either by succession or under a Will could be said to be the "pecuniary gain" only on account of one's accidental death. This, of course, is a pecuniary gain but how this is equitable or could be balanced out of the amount to be received as compensation under the Motor Vehicles Act. There is no corelation between the two amounts. Not even remotely. How can an amount of loss and gain of one contract be made applicable to the loss and gain of another contract. Similarly, how an amount receivable under a statute has any corelation with an amount earned by an individual. Principle of loss and gain has to be on the same plane within the same sphere, of course, subject to the contract to the contrary or any provisions of law."
Similarly, in United India Insurance Co. Ltd. and others versus Patricia Jean Mahajan and others, (2002) 6 SCC 281, the Supreme Court while not deducting the sum received on account of family pension and social security had in its mind that these payments had no co-relation between the compensation payable on account of accidental death and death on account of illness or otherwise. The Supreme Court emphasized that the principle of balancing between losses and gains must have some co-relation with the accidental death by reason of which alone the Claimant had received the amounts. Paras 34 and 36 of the report are extracted hereunder:
"34. Shri P.P. Rao, learned counsel appearing for the claimants submitted that the scope of the provisions relating to award of compensation under the Motor Vehicles Act is wider as compared to the provisions of the Fatal Accidents Acts. It is further indicated that Gobald case is a case under the Fatal Accidents Acts. For the above contention he has relied upon the observation made in Rebello case. It has also been submitted that only such benefits, which accrued to the claimants by reason of death, occurred due to an accident and not otherwise, can be deducted. Apart from drawing a distinction between the scope of provisions of the two Acts, namely, the Motor Vehicles Act and the Fatal Accidents Act, this Court in Helen Rebello case accepted the argument that the amount of insurance policies would be payable to the insured, the death may be accidental or otherwise, and even where the death may not occur the amount will be payable on its maturity. The insured chooses to have insurance policy and he keeps on paying the premium for the same, during all the time till maturity or his death. It has been held that such a pecuniary benefit by reason of death would not be such as may be deductible from the amount of compensation.
x x x x x x x x x x
36. We are in full agreement with the observations made in the case of Helen Rebello that principle of balancing between losses and gains, by reason of death, to arrive at the amount of compensation is a general rule, but what is more important is that such receipts by the claimants must have some correlation with the accidental death by reason of which alone the claimants have received the amounts. We do not think it would be necessary for us to go into the question of distinction made between the provisions of the Fatal Accidents Act and the Motor Vehicles Act. (emphasis supplied). According to the decisions referred to in the earlier part of this judgment, it is clear that the amount on account of social security as may have been received must have a nexus or relation with the accidental injury or death, so far to be deductible from the amount of compensation. There must be some correlation between the amount received and the accidental death or it may be in the same sphere, absence (sic) the amount received shall not be deducted from the amount of compensation. Thus, the amount received on account of insurance policy of the deceased cannot be deducted from the amount of compensation though no doubt the receipt of the insurance amount is accelerated due to premature death of the insured. So far as other items in respect of which learned counsel for the Insurance Company has vehemently urged, for example some allowance paid to the children, and Mrs Patricia Mahajan under the social security system, no correlation of those receipts with the accidental death has been shown much less established. Apart from the fact that contribution comes from different sources for constituting the fund out of which payment on account of social security system is made, one of the constituents of the fund is tax which is deducted from income for the purpose. We feel that the High Court has rightly disallowed any deduction on account of receipts under the insurance policy and other receipts under the social security system which the claimant would have also otherwise been entitled to receive irrespective of accidental death of Dr Mahajan. If the proposition "receipts from whatever source" is interpreted so widely that it may cover all the receipts, which may come into the hands of the claimants, in view of the mere death of the victim, it would only defeat the purpose of the Act providing for just compensation on account of accidental death. Such gains, maybe on account of savings or other investment etc. made by the deceased, would not go to the benefit of the wrongdoer and the claimant should not be left worse off, if he had never taken an insurance policy or had not made investments for future returns."
Thus, on the basis of the ratio in Helen C. Rebello (supra) and Patricia Jean Mahajan (supra), it can be safely concluded that only those amounts which are payable to the Claimant/Claimants only by reason of death or injury in an accident are liable to be deducted.
Now, we may consider the judgment of the Apex Court in the case of Bhakra Beas Management Board (supra), very strongly relied by the respondents, in the light of law as noticed in earlier part of the judgment. In Bhakra Beas Management Board (supra), the Apex Court has taken note of its earlier judgments in the case of Helen C. Rebello (supra) and Patricia Jean Mahajan (supra) as also Kerala State Road Transport Corporation versus Susamma Thomas, (1994) 2 SCC 176 and has held on the facts of that case that the High Court was not justified in refusing to take into account the fact that one of the claimants was given employment immediately after the accident. The Apex Court reduced compensation amount and varied the order of High Court instead of remanding the matter for fresh consideration being an old case. Before applying the ratio of judgment of the Apex Court in the case of Bhakra Beas Management Board (supra), it would be appropriate to examine the facts of the case first. In that case, the deceased was travelling in a jeep which met with the accident with truck and the Management (the appellant) immediately after the death of deceased offered compassionate appointment to his wife and also provide residence to the wife. In this background, the Apex Court observed that such benefit has to be taken into account while fixing the compensation.
We find that the factual aspect in the case on hand, does not fit with the factual situation as was there in the case of Bhakra Beas Management Board (supra). The position will be different in a case where the employer who offered compassionate appointment is not in any manner liable to pay any amount towards compensation to the claimants, as it is here. If the employer happens to be a person who is liable to pay compensation for the loss caused in road accident, offers some pecuniary benefits by way of giving employment etc., the employer/defendant in the claim petition may come forward and say that the pecuniary loss which has been caused to the claimants has been set off by granting such compassionate appointment and this factor should be taken into consideration while assessing the pecuniary loss to the claimants.
On taking into consideration, we find that there may be three different situations which may emerge:
1. There would be a case where employer of the deceased who has nothing to do with the accidental death of employee offers compassionate appointment in terms of the policy of "dying in harness" scheme.
2. Where the employer of the deceased is also vicariously liable to pay compensation to the dependants of the deceased.
3. Where the person causing the accident or the employer of such a person vicariously liable to pay compensation for tortuous act of the employee, offers employment to the widow or any dependant of the deceased not under any scheme for compassionate appointment but to reduce or avoid such liability.
The case on hand falls under first category. Here, the employer i.e. State of U.P. had nothing to do with the accidental death of Rajendra Kumar. The appointment was offered to the widow by the State of U.P. under the scheme for compassionate appointment. The appointment has no co-relation to the accidental death of the employee. Such appointment would have been offered to widow if the death is caused to an employee while in service. In this fact situation, the law as laid down by the Apex Court in the case of Helen C. Rebello (supra) and Patricia Jean Mahajan (supra) will apply In these two cases, the Apex Court has drawn a clear line of distinction in between any advantage given to a dependent one unrelated to accidental death and other deaths. It has been held that any amount paid to the claimants under the social security system, no correlation of those receipts with the accidental death, will not be liable for adjustment while calculating 'just compensation' under the provisions of Motor Vehicles Act. Such benefit would not go to the wrongdoer and the claimant should not be left worse off, if he had never taken an insurance policy or had not made investments for future returns.
This issue can be looked upon from a different angle in the light of recent decision though not directly on the point but certainly it has bearing on the issue in Arun Kumar Agarwal and another versus National Insurance Company & others, JT 2010 (7) SC 304. It was a case of death of housewife in road accident having no regular source of income. One of the pleas in defence raised by the Insurance Company was that the claimants are not entitled to get compensation amount in respect of death of such household lady as she was not in service. The Apex Court disagreed with the aforesaid submission and held that for the purposes of award of compensation to the dependents, some pecuniary estimate has to be made of the services of housewife/mother. The term 'services' is required to be given a broad meaning and must be construed by taking into account the loss of personal care and attention given by the deceased lady to her children as a mother and to her husband as a wife. They are entitled to adequate compensation in lieu of the loss of gratuitous services rendered by the deceased. The amount payable to the dependents cannot be diminished on the ground that some close relation like a grandmother may volunteer to render some of the services to the family which the deceased was giving earlier. The Apex Court in its various judgments has disapproved the theory of applicability of minimum wages payable to skill worker in the case of death of housewife. It has been held that it is most unrealistic to compare the gratuitous services of the housewife/mother with work of a skilled worker. In other words, domestic work by a lady can be valued in term of money so far as determination of compensation amount under the Motor Vehicles Act is concerned.
The Court cannot loose sight of the fact that a housewife who was not in any gainful employment may even in ordinary course of events engage herself in monetarily productive activities as pointed out by the Gujrat High Court in Heirs Of Deceased Girdharbhai v. Rakeshbhai Gopalbhai, 2012-LAWS(GJH)-3-48. The relevant portion is extracted below:
"MANY reasons can be given for such an approach. Firstly, a housewife who was previously not in any gainful employment may even in ordinary course of events engage herself in monetarily productive activities. A housewife and mother bringing up young children may in due course of time once her children grow up and is rid of initial burden of their basic education, may seek gainful employment to augment the family income. Further, employment of a person on compassionate basis may be relatable to death of deceased. The income earned by the wife through such compassionate appointment can only be relatable to her rendering actual service. By gaining compassionate appointment, she only secures appointment in preference over other eligible candidates. Her salary however depends on actual rendering of service. In other words, a person appointed on compassionate grounds due to death of an employee dying in harness only does have to compete with other eligible candidates and thus secures employment in a preferential category, nevertheless, salary is dependent solely on rendering satisfactory service."
The point which we are trying to bring home is that even if widow has been given employment under the (Dying in Harness) Rules, she will not be able to attend her mother in law and the minor daughter, needs assistance of attendant to look after them.
In the present case, the appellant no. 1 (widow) was looking after her minor daughter Km. Rekha (appellant no. 2) and Smt. Pachoo (mother-in-law). This is also an important factor to reject the contention of insurer that there is no pecuniary loss to the dependents of the deceased.
In view of our discussion, we are of the opinion that the Tribunal did not approach the matter in issue with right angle and committed illegality in not awarding any compensation amount towards pecuniary loss. The Tribunal has failed to appreciate that the employment to the appellant no. 1 was not provided by the respondents i.e. either by the owner of the vehicle which caused the accident or its insurer. This being so, the ratio laid down in the case of Bhakra Beas Management Board (supra) will not be applicable and the ratio laid down in earlier two cases decided by the Apex Court referred in the judgment of Bhakra Beas Management Board (supra) are more nearer to the facts of the case on hand.
Having said so as above, now the question with regard to determination of compensation amount arises. Fortunately, last payslip is on the record. It shows that the deceased was getting a sum of Rs.1096/- per month as salary. The Tribunal has taken that the deceased must have been spending a sum of Rs.900/- per month to the family. The Tribunal has calculated that the deceased would have earned a sum of Rs.3,94,516/- during remaining 30 years of his services because he died at the age of 28. We agree with the aforesaid calculation part of the compensation amount as done by the Tribunal and hold that the claimants are entitled to receive the said amount i.e. Rs.3,94,516/- along with other sums as already awarded by the Tribunal. The appellants are entitled to receive a sum of Rs.3,94,516/- as compensation amount from the insurer along with interest @ 8% per annum from the date of petition till the date of actual payments.
The next question which falls for determination is--who shall be liable to pay the amount under the award--the owner of the bus or the insurer. The respondent no. 1, owner of the bus has come out with the case that the bus was insured with National Insurance Co. Ltd. vide policy no. 451/303/6301209 valid for 19.03.1987 to 18.03.1988 vide para 3 of the written statement. He always plied the vehicle after complying with all the provisions of Motor Vehicles Act & Rules, vide para 10 thereof. The insurance company/respondent no. 3 could not dare to deny the insurance of the bus with it. It has taken the usual pleas that the accident was caused due to rash and negligent driving of the jeep and that the bus was not being driven by a valid driving license holder, vide para 14 of the written statement.
The Tribunal unmindfully has failed to struck any issue in this regard. But it will cause no difficulty due to peculiar facts of the case.
We have examined the original record carefully and found that this is a case of no evidence so far as the respondents are concerned, the insurance company in particular. On 23.04.1991, order-sheet shows, after recording the statements of PW-1 and PW-2, the case was adjourned to 10.05.1991 for recording the remaining evidence. It was adjourned on 10.05.1991, 04.07.1991 & 27.08.1991, but the defendants/respondents failed to produce any evidence. Paper No. 58-Kha, is an application of Divisional Manager, National Insurance Co. Ltd. wherein it has been stated--"withdrawning the powers (vakalatnama) of Shri Ajai Kapoor, Advocate from today who is conducting the above case". Any other Advocate was not appointed and no evidence in rebuttal was produced. Hearing took place on 07.09.1991. On that date, a copy of the agreement, in between the owner of the bus and the U.P.S.R.T.C. was filed and admitted on record by the U.P.S.R.T.C.
Thus, there is no evidence worth the name on record to show that the bus in question was being plied in violation of the terms and conditions of the insurance policy. Resultantly, the Insurance Company i.e. insurer is liable to pay of compensation amount.
Before parting with the case, it may be noted that the Tribunal committed illegality in taking into consideration the family pension and the fact that the widow will get increment every year and ignoring the fact that the deceased had he be alive would also get increment every year.
Viewed as above, the judgment and award of the Tribunal needs modification and we modify it accordingly. The findings of the Tribunal under issue no. 2 is set aside and it is held therein that besides the sum so awarded by the Tribunal, the appellants are entitled to receive a sum of Rs.3,94,516/- along with interest @ 8% per annum as indicated above from the insurer. The insurer i.e. the respondent no. 3 is required to deposit all the sums payable to the appellants after adjusting, any sum already deposited, within a period of one month before the court below.
In the result, the appeal succeeds and is allowed. No order as costs.
(A.K. Tripathi (II),J) (Prakash Krishna,J)
Order Date :- 23.11.2012
MK/
Print Page
FIRST APPEAL FROM ORDER NO. 947 OF 1991
Smt. Lalita Rathore and another.
---Appellants
Versus
Shri Darshan Lal and others.
---Respondents
CORUM: HON'BLE MR. JUSTICE PRAKASH KRISHNA
HON'BLE MR. JUSTICE ARVIND KUMAR TRIPATHI (II)
Citation; 2014 (1) ALL M R (JOURNAl) 1
Raising an important question relating to determination of compensation amount under Motor Vehicles Act, 1988 (for brevity 'the Act), the present appeal is at the instance of claimants. Second Additional District Judge/Motor Accident Claims Tribunal (for brevity 'the Tribunal), Shahjahanpur by its judgment dated 9th September, 1991 passed in Motor Accident Claim Petition No. 47 of 1987 has found that death of Rajendra Kumar was caused due to rash and negligent driving of bus attached to the Uttar Pradesh State Road Transport Corporation but has awarded a sum of Rs.5000/- only as compensation for shock and suffering and denied any other amount on short ground as after death of Rajendra Kumar, his widow Smt. Lalita Rathore got compassionate appointment in place of her husband, there is no pecuniary loss to the claimants. The question which falls for determination in the present appeal is-- whether benefits received by way of compassionate appointment ought to have been taken into consideration while determining the just compensation as required under Section 168 of the Act, in the facts and circumstances of the case.
The facts may be noticed in brief.
Rajendra Kumar (deceased) was engaged as a motor driver and was in service of State Government at the relevant point of time. He on 8th July, 1987 while driving Jeep bearing registration No. U.G.K. 1551 carrying Dr. S.K. Dhawan, D.P. Singh, G.M. Industries, S.K. Agarwal, Manager Marketing Industries and A.N. Gupta, Lead Bank Officer met with a road accident at about 2:30 p.m. The Jeep was going from Shahjahanpur to Jalalabad. When it reached near Allah, a bus bearing registration no. U.G.K. 1551 which was coming from opposite direction dashed against the Jeep. The claim petition was filed with the allegations that the said bus was being driven rashly and negligently and it caused the accident. In the said accident, Rajendra Kumar received 14 antemortem injuries and he ultimately died in hospital after two days. He was getting pay around Rs.1,000/- per month and salary certificate was filed showing that he was getting Rs.1096/- per month. He was aged about 28 years at the time of death. A lump sum amount of Rs.4,00,000/- was claimed as compensation amount against the defendants.
In the said claim petition, Smt. Pachoo, mother of deceased, Smt. Lalita widow of deceased and Km. Rekha aged about three years, daughter of deceased, were claimants. Darshan Lal, owner of bus, its driver Ghaffar Hussain, National Insurance Co. Ltd with whom the bus was insured and U.P.S.R.T.C. were impleaded as defendants. The claim petition was contested by the respondents by filing separate replies. It was stated that the bus bearing registration No. U.G.K. 1551 was not being driven rashly and negligently. The bus driver was holding valid driving license and therefore, the Insurance Company is liable to pay compensation, if any, to the claimants.
On the pleadings of the parties, the following issues were framed for determination.
1. Whether the accident has taken place due to negligent driving of the bus U.P.O. 5966?
2. Whether the claim is too excessive?
3. Whether the claimants are entitled to recover the compensation amount and from whom?
The claimants examined eyewitness namely, Khushi Ram (P.W.-1) to prove the accident and involvement of the bus in question. He deposed that bus U.P.O. 5966 was coming with high speed and it dashed the Jeep and thus, caused road accident in which Rajendra Kumar received fatal injuries as also the fact that the said bus was being driven rashly and negligently. He has further deposed that after the accident he took injured Rajendra Kumar and other injured persons out from the Jeep and carried them through a truck to the hospital. The Tribunal has reached to the conclusion that the testimony of Khushi Ram who is an eyewitness of accident is worth reliable. In absence of any contrary material before us, findings recorded by the Tribunal under issue no. 1 deserves our acceptance and we do so.
Issue no. 2 is the material issue for the purposes of disposal of present appeal. Under this issue, the claimants asked for compensation amount of Rs.4,00,000/- without specifying the amounts on specific heads. The deceased was State Government employee and the pay certificate shows that he was getting a sum of Rs.1096/- per month as salary. The Tribunal was influenced by the fact that after death of Rajendra Kumar, his widow Smt. Lalita was given employment on daily wages initially at Rs.30/- per day which was increased to Rs.50/- per day and was permanently employed after about two months. She was drawing a sum of Rs.1130/- per month as salary. Her qualification is junior high school. The Tribunal has held that there is no pecuniary loss to the claimants due to employment given to the widow. The claimants are not entitled to receive any amount as compensation amount towards pecuniary loss. The pecuniary advantage has come by way of service to the widow of the deceased and she has been put in somewhat better position than her husband was as she is getting Rs.1130/- per month and will get increment every year being a permanently employee. On the other hand, the deceased must have been spending 1/3rd towards his personal expenses and would have been contributory only 2/3rd of his earning towards family. The Tribunal was of the view that the claimants are now in better financial position due to employment of the widow. It ultimately awarded a sum of Rs.5000/- on 'humanitarian ground'. The widow of deceased though has adequately been compassionated by providing her permanent service but she is entitled to get some amount for shock and suffering. So she can be given Rs.5000/- on this account.
Under Issue no. 3, Rs.5000/- has been given to the mother of deceased and widow each from owner of the bus.
Heard the learned counsel for the parties.
Learned counsel for the appellants submits that the Tribunal has erred in holding that there is no pecuniary loss to the claimants on account of death of Rajendra Kumar. The fact that widow has been given employment under (Dying in Harness) Rules is of no avail either to the owner of bus or to the Insurance Company. The said fact is wholly irrelevant so far as the determination of compensation amount as required under Section 166 of the Act is concerned.
In reply, learned counsel for the Insurance Company submits that controversy stands concluded by the judgment of the Apex Court in the case of Bhakra Beas Management Board versus Kanta Aggarwal (Smt.) and others, (2008) 11 SCC 366, against the claimants/appellants.
Considered the respective submissions of the learned counsel for the parties and perused the record.
Only question involved, as has been noticed in opening part of the judgment is whether in the facts and circumstances of the case, benefits received by way of compassionate appointment of the widow (appellant no. 1 herein) should be taken into consideration while determining just compensation as provided under Section 168 of the Act.
Section 168 of the Act enjoins a Claims Tribunal to determine the amount of compensation which is just and reasonable. It can neither be a source of profit nor should it be a pittance.
In State of Haryana v. Jasbir Kaur, (2003) 7 SCC 484, the Supreme Court held as under:
"7. It has to be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which is to be in the real sense "damages" which in turn appears to it to be "just and reasonable". It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be "just" and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. The courts and tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be "just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just" a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness, and non-arbitrary. If it is not so it cannot be just."
In Helen C. Rebello (Mrs.) & Ors. v. Maharashtra State Road Transport Corporation and Anr., (1999)1 SCC 90, the question before the Supreme Court was whether the amount received under Life Insurance Policy was liable to be deducted on the principle of balancing the loss and gain. The Supreme Court referred to the Law of Torts by Fleming and differentiated between the amount received under the Life Insurance Policy and an Accident Insurance Policy. It was, thus held that the payment received under the Life Insurance Policy was not deductible whereas the payment received under the Personal Accident Insurance was deductible. The reason was that in case of payment received under the Accident Insurance Policy, the amount was receivable only on account of death in an accident and not otherwise, whereas in case of Life Insurance Policy, the amount was receivable irrespective of the death. Thus, the fact that the payment was made under an independent contract of insurance was not of much importance. Moreover, the use of the word "just" in Section 168 of the Act, confers wider discretion to the Claims Tribunal. The Claims Tribunal, therefore, has to see that the compensation awarded is neither niggardly nor a source of profit. Paras 26, 27, 28, 32, 33 and 34 of the report in Helen C. Rebello (supra) are extracted hereunder:
"26. This Court, in this case did observe, though did not decide, to which we refer that the use of the words, "which appears to it to be just" under Section 110-B gives wider power to the Tribunal in the matter of determination of compensation under the 1939 Act. There is another case of this Court in which there is a passing reference to the deduction out of the compensation payable under the Motor Vehicles Act. In N. Sivammal v. Managing Director, Pandian Roadways Corpn. this Court held that the deduction of Rs 10,000 receivable as monetary benefit to the widow of the pension amount, was not justified. So, though deduction of the widow's pension was not accepted but for this, no principle was discussed therein. However, having given our full consideration, we find there is a deliberate change in the language in the later Act, revealing the intent of the legislature, viz., to confer wider discretion on the Tribunal which is not to be found in the earlier Act. Thus, any decision based on the principle applicable to the earlier Act, would not be applicable while adjudicating the compensation payable to the claimant in the later Act. 27. Fleming, in his classic work on the Law of Torts, has summed up the law on the subject in these words. This is also referred to in Sushila Devi v. Ibrahim:
"The pecuniary loss of such dependant can only be ascertained by balancing, on the one hand, the loss to him of future pecuniary benefit, and, on the other, any pecuniary advantage which, from whatever source, comes to him by reason of the death. ... There is a vital distinction between the receipt of moneys under accident insurance and life assurance policies. In the case of accident policies, the full value is deductible on the ground that there was no certainty, or even a reasonable probability, that the insured would ever suffer an accident. But since man is certain to die, it would not be justifiable to set off the whole proceeds from a life assurance policy, since it is legitimate to assume that the widow would have received some benefit, if her husband had pre-deceased her during the currency of the policy or if the policy had matured during their joint lives. The exact extent of permissible reduction, however, is still a matter of uncertainty...." (emphasis supplied)
x x x x x x x x x x x x x x x
28. Fleming has also expressed that the deduction or set-off of the life insurance could not be justifiable. When he uses the words "not be justifiable" he refers to one's conscience, fairness and contrary to what is just. In this context, the use of the word "just", which was neither in the English 1846 Act nor in the Indian 1855 Act, now brought in under the 1939 Act, gains importance. This shows that the word "just" was deliberately brought in Section 110-B of the 1939 Act to enlarge the consideration in computing the compensation which, of course, would include the question of deductibility, if any. This leads us to an irresistible conclusion that the principle of computation of the compensation both under the English Fatal Accidents Act, 1846 and under the Indian Fatal Accidents Act, 1855 by the earlier decisions, were restrictive in nature in the absence of any guiding words therein, hence the courts applied the general principle at the common law of loss and gain but that would not apply to the considerations under Section 110-B of the 1939 Act which enlarges the discretion to deliver better justice to the claimant, in computing the compensation, to see what is just. Thus, we find that all the decisions of the High Courts, which based their interpretation on the principles of these two Acts, viz., the English 1846 Act and the Indian 1855 Act to hold that deductions were valid cannot be upheld. As we have observed above, the decisions even with reference to the decision of this Court in Gobald Motor Service where the question was neither raised nor adjudicated and that case also, being under the 1855 Act, cannot be pressed into service. Thus, these courts by giving a restrictive interpretation in computation of compensation based on the limitation of the language of the Fatal Accidents Act, fell into an error, as it did not take into account the change of language in the 1939 Act and did not consider the widening of the discretion of the Tribunal under Section 110-B. The word "just", as its nomenclature, denotes equitability, fairness and reasonableness having a large peripheral field. The largeness is, of course, not arbitrary; it is restricted by the conscience which is fair, reasonable and equitable, if it exceeds; it is termed as unfair, unreasonable, unequitable, not just. Thus, this field of wider discretion of the Tribunal has to be within the said limitations and
the limitations under any provision of this Act or any other provision having the force of law..........." x x x x x x x x x x
32. So far as the general principle of estimating damages under the common law is concerned, it is settled that the pecuniary loss can be ascertained only by balancing on one hand, the loss to the claimant of the future pecuniary benefits that would have accrued to him but for the death with the "pecuniary advantage" which from whatever source comes to him by reason of the death. In other words, it is the balancing of loss and gain of the claimant occasioned by the death. But this has to change its colour to the extent a statute intends to do. Thus, this has to be interpreted in the light of the provisions of the Motor Vehicles Act, 1939. It is very clear, to which there could be no doubt that this Act delivers compensation to the claimant only on account of accidental injury or death, not on account of any other death. Thus, the pecuniary advantage accruing under this Act has to be deciphered, correlating with the accidental death. The compensation payable under the Motor Vehicles Act is on account of the pecuniary loss to the claimant by accidental injury or death and not other forms of death. If there is natural death or death by suicide, serious illness, including even death by accident, through train, air flight not involving a motor vehicle, it would not be covered under the Motor Vehicles Act. Thus, the application of the general principle under the common law of loss and gain for the computation of compensation under this Act must correlate to this type of injury or death, viz., accidental. If the words "pecuniary advantage" from whatever source are to be interpreted to mean any form of death under this Act, it would dilute all possible benefits conferred on the claimant and would be contrary to the spirit of the law. If the "pecuniary advantage" resulting from death means pecuniary advantage coming under all forms of death then it will include all the assets moveable, immovable, shares, bank accounts, cash and every amount receivable under any contract. In other words, all heritable assets including what is willed by the deceased etc. This would obliterate both, all possible conferment of economic security to the claimant by the deceased and the intentions of the legislature. By such an interpretation, the tortfeasor in spite of his wrongful act or negligence, which contributes to the death, would have in many cases no liability or meagre liability. In our considered opinion, the general principle of loss and gain takes colour of this statute, viz., the gain has to be interpreted which is as a result of the accidental death and the loss on account of the accidental death. Thus, under the present Act, whatever pecuniary advantage is received by the claimant, from whatever source, would only mean which comes to the claimant on account of the accidental death and not other forms of death. The constitution of the Motor Accident Claims Tribunal itself under Section 110 is, as the section states: "... for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, ...". 33. Thus, it would not include that which the claimant receives on account of other forms of deaths, which he would have received even apart from accidental death. Thus, such pecuniary advantage would have no corelation to the accidental death for which compensation is computed. Any amount received or receivable not only on account of the accidental death but that which would have come to the claimant even otherwise, could not be construed to be the "pecuniary advantage", liable for deduction. However, where the employer insures his employee, as against injury or death arising out of an accident, any amount received out of such insurance on the happening of such incident may be an amount liable for deduction. However, our legislature has taken note of such contingency through the proviso of Section 95. Under it the liability of the insurer is excluded in respect of injury or death, arising out of and in the course of employment of an employee."
x x x x x x x x x x x x x x x
34. This is based on the principle that the claimant for the happening of the same incidence may not gain twice from two sources. This, it is excluded thus, either through the wisdom of the legislature or through the principle of loss and gain through deduction not to give gain to the claimant twice arising from the same transaction, viz., the same accident. It is significant to record here in both the sources, viz., either under the Motor Vehicles Act or from the employer, the compensation receivable by the claimant is either statutory or through the security of the employer securing for his employee but in both cases he receives the amount without his contribution. How thus an amount earned out of one's labour or contribution towards one's wealth, savings, etc. either for himself or for his family which such person knows under the law has to go to his heirs after his death either by succession or under a Will could be said to be the "pecuniary gain" only on account of one's accidental death. This, of course, is a pecuniary gain but how this is equitable or could be balanced out of the amount to be received as compensation under the Motor Vehicles Act. There is no corelation between the two amounts. Not even remotely. How can an amount of loss and gain of one contract be made applicable to the loss and gain of another contract. Similarly, how an amount receivable under a statute has any corelation with an amount earned by an individual. Principle of loss and gain has to be on the same plane within the same sphere, of course, subject to the contract to the contrary or any provisions of law."
Similarly, in United India Insurance Co. Ltd. and others versus Patricia Jean Mahajan and others, (2002) 6 SCC 281, the Supreme Court while not deducting the sum received on account of family pension and social security had in its mind that these payments had no co-relation between the compensation payable on account of accidental death and death on account of illness or otherwise. The Supreme Court emphasized that the principle of balancing between losses and gains must have some co-relation with the accidental death by reason of which alone the Claimant had received the amounts. Paras 34 and 36 of the report are extracted hereunder:
"34. Shri P.P. Rao, learned counsel appearing for the claimants submitted that the scope of the provisions relating to award of compensation under the Motor Vehicles Act is wider as compared to the provisions of the Fatal Accidents Acts. It is further indicated that Gobald case is a case under the Fatal Accidents Acts. For the above contention he has relied upon the observation made in Rebello case. It has also been submitted that only such benefits, which accrued to the claimants by reason of death, occurred due to an accident and not otherwise, can be deducted. Apart from drawing a distinction between the scope of provisions of the two Acts, namely, the Motor Vehicles Act and the Fatal Accidents Act, this Court in Helen Rebello case accepted the argument that the amount of insurance policies would be payable to the insured, the death may be accidental or otherwise, and even where the death may not occur the amount will be payable on its maturity. The insured chooses to have insurance policy and he keeps on paying the premium for the same, during all the time till maturity or his death. It has been held that such a pecuniary benefit by reason of death would not be such as may be deductible from the amount of compensation.
x x x x x x x x x x
36. We are in full agreement with the observations made in the case of Helen Rebello that principle of balancing between losses and gains, by reason of death, to arrive at the amount of compensation is a general rule, but what is more important is that such receipts by the claimants must have some correlation with the accidental death by reason of which alone the claimants have received the amounts. We do not think it would be necessary for us to go into the question of distinction made between the provisions of the Fatal Accidents Act and the Motor Vehicles Act. (emphasis supplied). According to the decisions referred to in the earlier part of this judgment, it is clear that the amount on account of social security as may have been received must have a nexus or relation with the accidental injury or death, so far to be deductible from the amount of compensation. There must be some correlation between the amount received and the accidental death or it may be in the same sphere, absence (sic) the amount received shall not be deducted from the amount of compensation. Thus, the amount received on account of insurance policy of the deceased cannot be deducted from the amount of compensation though no doubt the receipt of the insurance amount is accelerated due to premature death of the insured. So far as other items in respect of which learned counsel for the Insurance Company has vehemently urged, for example some allowance paid to the children, and Mrs Patricia Mahajan under the social security system, no correlation of those receipts with the accidental death has been shown much less established. Apart from the fact that contribution comes from different sources for constituting the fund out of which payment on account of social security system is made, one of the constituents of the fund is tax which is deducted from income for the purpose. We feel that the High Court has rightly disallowed any deduction on account of receipts under the insurance policy and other receipts under the social security system which the claimant would have also otherwise been entitled to receive irrespective of accidental death of Dr Mahajan. If the proposition "receipts from whatever source" is interpreted so widely that it may cover all the receipts, which may come into the hands of the claimants, in view of the mere death of the victim, it would only defeat the purpose of the Act providing for just compensation on account of accidental death. Such gains, maybe on account of savings or other investment etc. made by the deceased, would not go to the benefit of the wrongdoer and the claimant should not be left worse off, if he had never taken an insurance policy or had not made investments for future returns."
Thus, on the basis of the ratio in Helen C. Rebello (supra) and Patricia Jean Mahajan (supra), it can be safely concluded that only those amounts which are payable to the Claimant/Claimants only by reason of death or injury in an accident are liable to be deducted.
Now, we may consider the judgment of the Apex Court in the case of Bhakra Beas Management Board (supra), very strongly relied by the respondents, in the light of law as noticed in earlier part of the judgment. In Bhakra Beas Management Board (supra), the Apex Court has taken note of its earlier judgments in the case of Helen C. Rebello (supra) and Patricia Jean Mahajan (supra) as also Kerala State Road Transport Corporation versus Susamma Thomas, (1994) 2 SCC 176 and has held on the facts of that case that the High Court was not justified in refusing to take into account the fact that one of the claimants was given employment immediately after the accident. The Apex Court reduced compensation amount and varied the order of High Court instead of remanding the matter for fresh consideration being an old case. Before applying the ratio of judgment of the Apex Court in the case of Bhakra Beas Management Board (supra), it would be appropriate to examine the facts of the case first. In that case, the deceased was travelling in a jeep which met with the accident with truck and the Management (the appellant) immediately after the death of deceased offered compassionate appointment to his wife and also provide residence to the wife. In this background, the Apex Court observed that such benefit has to be taken into account while fixing the compensation.
We find that the factual aspect in the case on hand, does not fit with the factual situation as was there in the case of Bhakra Beas Management Board (supra). The position will be different in a case where the employer who offered compassionate appointment is not in any manner liable to pay any amount towards compensation to the claimants, as it is here. If the employer happens to be a person who is liable to pay compensation for the loss caused in road accident, offers some pecuniary benefits by way of giving employment etc., the employer/defendant in the claim petition may come forward and say that the pecuniary loss which has been caused to the claimants has been set off by granting such compassionate appointment and this factor should be taken into consideration while assessing the pecuniary loss to the claimants.
On taking into consideration, we find that there may be three different situations which may emerge:
1. There would be a case where employer of the deceased who has nothing to do with the accidental death of employee offers compassionate appointment in terms of the policy of "dying in harness" scheme.
2. Where the employer of the deceased is also vicariously liable to pay compensation to the dependants of the deceased.
3. Where the person causing the accident or the employer of such a person vicariously liable to pay compensation for tortuous act of the employee, offers employment to the widow or any dependant of the deceased not under any scheme for compassionate appointment but to reduce or avoid such liability.
The case on hand falls under first category. Here, the employer i.e. State of U.P. had nothing to do with the accidental death of Rajendra Kumar. The appointment was offered to the widow by the State of U.P. under the scheme for compassionate appointment. The appointment has no co-relation to the accidental death of the employee. Such appointment would have been offered to widow if the death is caused to an employee while in service. In this fact situation, the law as laid down by the Apex Court in the case of Helen C. Rebello (supra) and Patricia Jean Mahajan (supra) will apply In these two cases, the Apex Court has drawn a clear line of distinction in between any advantage given to a dependent one unrelated to accidental death and other deaths. It has been held that any amount paid to the claimants under the social security system, no correlation of those receipts with the accidental death, will not be liable for adjustment while calculating 'just compensation' under the provisions of Motor Vehicles Act. Such benefit would not go to the wrongdoer and the claimant should not be left worse off, if he had never taken an insurance policy or had not made investments for future returns.
This issue can be looked upon from a different angle in the light of recent decision though not directly on the point but certainly it has bearing on the issue in Arun Kumar Agarwal and another versus National Insurance Company & others, JT 2010 (7) SC 304. It was a case of death of housewife in road accident having no regular source of income. One of the pleas in defence raised by the Insurance Company was that the claimants are not entitled to get compensation amount in respect of death of such household lady as she was not in service. The Apex Court disagreed with the aforesaid submission and held that for the purposes of award of compensation to the dependents, some pecuniary estimate has to be made of the services of housewife/mother. The term 'services' is required to be given a broad meaning and must be construed by taking into account the loss of personal care and attention given by the deceased lady to her children as a mother and to her husband as a wife. They are entitled to adequate compensation in lieu of the loss of gratuitous services rendered by the deceased. The amount payable to the dependents cannot be diminished on the ground that some close relation like a grandmother may volunteer to render some of the services to the family which the deceased was giving earlier. The Apex Court in its various judgments has disapproved the theory of applicability of minimum wages payable to skill worker in the case of death of housewife. It has been held that it is most unrealistic to compare the gratuitous services of the housewife/mother with work of a skilled worker. In other words, domestic work by a lady can be valued in term of money so far as determination of compensation amount under the Motor Vehicles Act is concerned.
The Court cannot loose sight of the fact that a housewife who was not in any gainful employment may even in ordinary course of events engage herself in monetarily productive activities as pointed out by the Gujrat High Court in Heirs Of Deceased Girdharbhai v. Rakeshbhai Gopalbhai, 2012-LAWS(GJH)-3-48. The relevant portion is extracted below:
"MANY reasons can be given for such an approach. Firstly, a housewife who was previously not in any gainful employment may even in ordinary course of events engage herself in monetarily productive activities. A housewife and mother bringing up young children may in due course of time once her children grow up and is rid of initial burden of their basic education, may seek gainful employment to augment the family income. Further, employment of a person on compassionate basis may be relatable to death of deceased. The income earned by the wife through such compassionate appointment can only be relatable to her rendering actual service. By gaining compassionate appointment, she only secures appointment in preference over other eligible candidates. Her salary however depends on actual rendering of service. In other words, a person appointed on compassionate grounds due to death of an employee dying in harness only does have to compete with other eligible candidates and thus secures employment in a preferential category, nevertheless, salary is dependent solely on rendering satisfactory service."
The point which we are trying to bring home is that even if widow has been given employment under the (Dying in Harness) Rules, she will not be able to attend her mother in law and the minor daughter, needs assistance of attendant to look after them.
In the present case, the appellant no. 1 (widow) was looking after her minor daughter Km. Rekha (appellant no. 2) and Smt. Pachoo (mother-in-law). This is also an important factor to reject the contention of insurer that there is no pecuniary loss to the dependents of the deceased.
In view of our discussion, we are of the opinion that the Tribunal did not approach the matter in issue with right angle and committed illegality in not awarding any compensation amount towards pecuniary loss. The Tribunal has failed to appreciate that the employment to the appellant no. 1 was not provided by the respondents i.e. either by the owner of the vehicle which caused the accident or its insurer. This being so, the ratio laid down in the case of Bhakra Beas Management Board (supra) will not be applicable and the ratio laid down in earlier two cases decided by the Apex Court referred in the judgment of Bhakra Beas Management Board (supra) are more nearer to the facts of the case on hand.
Having said so as above, now the question with regard to determination of compensation amount arises. Fortunately, last payslip is on the record. It shows that the deceased was getting a sum of Rs.1096/- per month as salary. The Tribunal has taken that the deceased must have been spending a sum of Rs.900/- per month to the family. The Tribunal has calculated that the deceased would have earned a sum of Rs.3,94,516/- during remaining 30 years of his services because he died at the age of 28. We agree with the aforesaid calculation part of the compensation amount as done by the Tribunal and hold that the claimants are entitled to receive the said amount i.e. Rs.3,94,516/- along with other sums as already awarded by the Tribunal. The appellants are entitled to receive a sum of Rs.3,94,516/- as compensation amount from the insurer along with interest @ 8% per annum from the date of petition till the date of actual payments.
The next question which falls for determination is--who shall be liable to pay the amount under the award--the owner of the bus or the insurer. The respondent no. 1, owner of the bus has come out with the case that the bus was insured with National Insurance Co. Ltd. vide policy no. 451/303/6301209 valid for 19.03.1987 to 18.03.1988 vide para 3 of the written statement. He always plied the vehicle after complying with all the provisions of Motor Vehicles Act & Rules, vide para 10 thereof. The insurance company/respondent no. 3 could not dare to deny the insurance of the bus with it. It has taken the usual pleas that the accident was caused due to rash and negligent driving of the jeep and that the bus was not being driven by a valid driving license holder, vide para 14 of the written statement.
The Tribunal unmindfully has failed to struck any issue in this regard. But it will cause no difficulty due to peculiar facts of the case.
We have examined the original record carefully and found that this is a case of no evidence so far as the respondents are concerned, the insurance company in particular. On 23.04.1991, order-sheet shows, after recording the statements of PW-1 and PW-2, the case was adjourned to 10.05.1991 for recording the remaining evidence. It was adjourned on 10.05.1991, 04.07.1991 & 27.08.1991, but the defendants/respondents failed to produce any evidence. Paper No. 58-Kha, is an application of Divisional Manager, National Insurance Co. Ltd. wherein it has been stated--"withdrawning the powers (vakalatnama) of Shri Ajai Kapoor, Advocate from today who is conducting the above case". Any other Advocate was not appointed and no evidence in rebuttal was produced. Hearing took place on 07.09.1991. On that date, a copy of the agreement, in between the owner of the bus and the U.P.S.R.T.C. was filed and admitted on record by the U.P.S.R.T.C.
Thus, there is no evidence worth the name on record to show that the bus in question was being plied in violation of the terms and conditions of the insurance policy. Resultantly, the Insurance Company i.e. insurer is liable to pay of compensation amount.
Before parting with the case, it may be noted that the Tribunal committed illegality in taking into consideration the family pension and the fact that the widow will get increment every year and ignoring the fact that the deceased had he be alive would also get increment every year.
Viewed as above, the judgment and award of the Tribunal needs modification and we modify it accordingly. The findings of the Tribunal under issue no. 2 is set aside and it is held therein that besides the sum so awarded by the Tribunal, the appellants are entitled to receive a sum of Rs.3,94,516/- along with interest @ 8% per annum as indicated above from the insurer. The insurer i.e. the respondent no. 3 is required to deposit all the sums payable to the appellants after adjusting, any sum already deposited, within a period of one month before the court below.
In the result, the appeal succeeds and is allowed. No order as costs.
(A.K. Tripathi (II),J) (Prakash Krishna,J)
Order Date :- 23.11.2012
MK/
No comments:
Post a Comment