“pay and wages” of the deceased Government employee against the
tortfeasor or Insurance Company, as the case may be, covered by the
first part of Rule 5 under the Act of 1988. The claimants or
dependents of the deceased Government employee (employed by State
of Haryana), however, cannot set up a claim for the same subject
falling under the first part of Rule 5 - “pay and allowances”, which are
receivable by them from employer (State) under Rule 5 (1) of the Rules
of 2006. In that, if the deceased employee was to survive the motor
accident injury, would have remained in employment and earned his
regular pay and allowances. Any other interpretation of the said Rules
would inevitably result in double payment towards the same head of
loss of “pay and wages” of the deceased Government employee
entailing in grant of bonanza, largesse or source of profit to the
dependants / claimants. Somewhat similar situation has been spelt
out in Section 167 of the Motor Vehicles Act, 1988, which reads thus:
“167. Option regarding claims for compensation in
certain cases.--- Notwithstanding anything contained in the
Workmen’s Compensation Act, 1923 (8 of 1923) where the
death of, or bodily injury to, any person gives rise to a claim
for compensation under this Act and also under the
Workmen’s Compensation Act, 1923, the person entitled to
compensation may without prejudice to the provisions of
Chapter X claim such compensation under either of those
Acts but not under both.”
(emphasis supplied)
22. Indeed, similar statutory exclusion of claim receivable under the
Rules of 2006 is absent. That, however, does not mean that the Claims
Tribunal should remain oblivious to the fact that the claim towards
loss of Pay and wages of the deceased has already been or will be
compensated by the employer in the form of ex-gratia financial
assistance on compassionate grounds under Rule 5 (1). The Claims
Tribunal has to adjudicate the claim and determine the amount of
compensation which appears to it to be just. The amount receivable by
the dependants / claimants towards the head of pay and allowances
in the form of ex-gratia financial assistance, therefore, cannot be paid
for the second time to the claimants. True it is, that the Rules of 2006
would come into play if the Government employee dies in harness even
due to natural death. At the same time, the Rules of 2006 do not
expressly enable the dependents of the deceased Government
employee to claim similar amount from the tortfeasor or Insurance
Company because of the accidental death of the deceased Government
employee. The harmonious approach for determining a just
compensation payable under the Act of 1988, therefore, is to exclude
the amount received or receivable by the dependents of the deceased
Government employee under the Rules of 2006 towards the head
financial assistance equivalent to “pay and other allowances” that was
last drawn by the deceased Government employee in the normal
course. This is not to say that the amount or payment receivable by
the dependents of the deceased Government employee under Rule 5
(1) of the Rules, is the total entitlement under the head of “loss of
income”. So far as the claim towards loss of future escalation of
income and other benefits, if the deceased Government employee had
survived the accident can still be pursued by them in their claim
under the Act of 1988. For, it is not covered by the Rules of 2006.
Similarly, other benefits extended to the dependents of the deceased
Government employee in terms of sub-rule (2) to sub-rule (5) of Rule 5
including family pension, Life Insurance, Provident Fund etc., that
must remain unaffected and cannot be allowed to be deducted, which,
any way would be paid to the dependents of the deceased Government
employee, applying the principle expounded in Helen C.Rebello and
Patricia Jean Mahajan’s cases (supra).
(REPORTABLE)
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 9654 /2016
(Arising out of SLP (Civil) No. 14312/2013)
Reliance General Insurance Co. Ltd.
Vs.
Shashi Sharma & Ors.
Citation:(2016) 9 SCC627
3. These matters have been placed before a three Judges’ Bench in
terms of order dated 7th October, 2015. This order has not formulated
any specific question to be answered by the larger Bench.
4. The leading appeal challenges the judgment of the Single Judge
of the High Court of Punjab and Haryana at Chandigarh dated
February 13, 2013 in FAO No.503/2012. That appeal was filed by the
respondents (in appeal arising from SLP (Civil) No.14312/2013)
against the Award of the Motor Accident Claims Tribunal, Jind, in
MACT Case No.136 dated 3rd November 2011. The said respondents
had filed a claim petition after the death of Dr. Ashwini Sharma
caused due to a motor accident on 24th October 2010 in front of Main
gate of General Hospital at Jind. He succumbed to the injuries
sustained in that accident. The Tribunal partly allowed the claim
petition. A sum of Rs.4,50,000/- was awarded as compensation to the
claimants being the dependants of deceased Dr. Ashwini Sharma;
with interest at the rate of 7.5% per annum from the date of filing of
the claim petition till realization. The Tribunal directed the
appellant-Insurance Company to pay the compensation amount as
determined in the award to the claimants. The claimants, being
aggrieved by the quantum of compensation fixed by the Tribunal and
in particular deduction of compensation amount received by them
from other source, preferred appeal before the High Court. The High
Court, relying on the decision of Division Bench of the same High
Court dated December 21, 2012, in the case of Reliance General
Insurance Company Ltd. Vs. Purnima & Others,
1
acceded to the
contention of the claimants that the amount receivable by the
dependents of the deceased under the Haryana Compassionate
Assistance to the dependents of the Deceased Government Employees
Rules, 2006 (hereinafter referred to “Rules of 2006”) cannot be
deducted from the quantum of compensation fixed by the Tribunal. On
that finding, the High Court allowed the appeal of the respondents in
the following terms:
“In view of the above, a sum of Rs.89,24,604/-
(Rs.1,00,957/- - 15% thereof being Rs. 15,143 =
Rs.85,814/- - 1/3rd thereof being Rs.28,605/- =
Rs.57,209 x 12 =Rs.6,86,508/- x 13 = 89,24,604) towards
loss of dependency, Rs.15,000/-towards loss of
consortium of the 1st appellant, Rs.15,000/- towards loss
of estate, Rs.10,000/- towards funeral expenses and
Rs.5,000/- towards transportation expenses, in aggregate
a sum of Rs.89,60,604/- with interest @ 7.5% for the
enhanced portion of the compensation from the date of
petition till the date of realization is awarded. The rate of
interest applied and the mode of apportionment done by
the Tribunal stands confirmed.”
5. The High Court has adopted the same reasoning to disallow
deduction of compensation amount received by the claimants as per
Rules of 2006 in the respective companion cases listed for analogous
hearing. The sole contention advanced by the appellants - Insurance
Companies, in these appeals, is that, the High Court has erred in law
1
F.A.O No.1322 Of 2010
in disallowing the deduction of amount received by the concerned
claimants under the Rules of 2006, from the quantum of
compensation amount payable to the claimants under the Act of 1988.
6. As the High Court has relied on the decision of the Division
Bench of the same High Court in Purnima’s case (supra), it is
apposite to first advert to that decision. That decision was rendered on
a reference made to a larger Bench, on a question which has been
canvassed by the appellants - Insurance Companies even in the
present appeals, in view of the conflicting decisions of Single Judges of
the same High Court in the case of Oriental Insurance Co. vs. Saroj
Devi 2 and in the case of New India Assurance Co. vs. Smt.
Santosh3
. The question considered by the Division Bench was:
“whether the compensation received from the Government under the
Haryana Compassionate Assistance to the Defendants of Deceased
Governments Employees Rules, 2006 (or otherwise) is to be deducted
from the total compensation, which is payable to the dependents of
the deceased, who dies in an accident, while computing financial
benefits through ex-gratia payments by the Government?” The
Division Bench analysed the scheme and intent of the Rules of 2006
2
2012 (1) PLR 761
3
2010 (4) PLR 780
and held that the said Rules have been framed by the Governor of
Haryana in exercise of powers conferred by proviso to Article 309 of
the Constitution of India; these Rules not only have statutory force,
but must be treated at par with the Statute enacted by the Legislature;
these Rules purport to assist the family of the deceased to tide over
hardship caused as a result of the employee dying in harness (not
merely because of motor accident) or who goes missing or whose
whereabouts are not known, by providing ex-gratia financial
assistance to the family of the deceased employee; this financial
assistance to the dependents of the employee who dies in harness, has
no correlation with the cause of death of the employee due to motor
accident. In other words, on mere death of the employee dying in
harness, be it natural death or due to illness or otherwise the Rules of
2006 would become applicable; and as a result of which the family of
the deceased employee is entitled to receive financial assistance from
the employer. The Division Bench held that the scheme of financial
assistance postulated in Rules of 2006, is a service benefit which
accrues to the dependents of the deceased and is in the domain of
service matter/benefit given to the employee as a result of the service
rendered by the deceased employee. The benefit accruing to the
dependents of the deceased is in the nature of enhanced pension given
as per the provisions of the Pension/Family Pension Scheme,Page 6
6
recognizing the fact that the pension is normally given for meritorious,
long and faithful service by the employee. The Division Bench relying
on the exposition of two Judges’ Bench decision of this Court in
Helen C. Rebello (Mrs.) & Ors. vs. Maharashtra State Road
Transport Corporation & Anr.4 and also in United India Insurance
Co. vs. Patricia Jean Mahajan & Ors.5
, held that the tortfeasor or
Insurance Companies cannot get their liability excused or reduced
because the deceased’s family would receive financial assistance from
an alternative source (employer) by reason of the death of the
deceased. It held that deductions are admissible from the amount of
compensation in case the claimant receives the benefit as a
consequence of injuries sustained which otherwise he would not been
entitled to; and does not cover cases when the payment received is not
dependent upon an injury sustained on meeting with an accident.
That the assistance received under Rules of 2006 is not dependent
upon the death of an employee arising out of a motor accident only.
Thus, it has no correlation with the manner in which the death
occurs. Accordingly, the Division Bench held that the Insurance
Company is not entitled to claim deduction of the amount given to the
dependents under the Rules of 2006, while calculating the
4
1999 (1) SCC 90
5
2002 (6) SCC 281Page 7
7
compensation amount payable under the Motor Vehicles Act.
7. The Insurance Companies, on the other hand, have relied on the
decision of two Judges’ Bench of this Court in Bhakra Beas
Management Board vs. Kanta Aggarwal (Smt.) & Ors.6
, to contend
that the plea of the appellant in that case that the claimants have
received financial assistance from other source due to the death of her
husband - by way of salary amount on account of compassionate
appointment and also residence provided to her was deductible, has
been accepted by this Court; and was so deducted while determining a
just compensation amount payable under the Motor Vehicles Act.
Reliance is also placed on the dictum of three Judges’ Bench in
Gobald Motor Service Limited vs. R.M.K.Veluswami 7
, which,
according to the Insurance Company, permits deduction of benefits
such as compensation received by the dependents of the deceased
from the employer. Reliance is also placed on two Judges’ Bench
decision in the case of Sheikhupura Transport Co. Ltd. vs. Northern
India Transport Insurance Co.8
; another two Judges’ Bench
judgment in the case of Vimal Kanwar & Ors. vs. Kishore Dan &
Ors.9
. Reliance is then placed on another decision of two Judges’
6
2008 (11) SCC 366
7
1962 (1) SCR 929 = AIR 1962 SC 1,
8
1971 (1) SCC 785
9
2013 (7) SCC 476Page 8
8
Bench of this Court in Oriental Insurance Co. Ltd. vs. Deo Patodi
and Ors.10 for the principles to be reckoned to determine a just
compensation payable under the Motor Vehicles Act. In substance, the
contention of the Insurance Companies is that the claimants cannot
be permitted to profiteer and receive double benefit on account of the
death of their family member on the same head of “Loss of income” to
them.
8. Besides the above noted stand of the Insurance Companies the
other incidental question to be considered is whether there is any
conflict of opinion between the coordinate Benches (of two Judges’) of
this Court, in the case of Bhakra Beas Management Board (supra) on
the one hand, and that of Helen C. Rebelo and Patricia J.Mahajan
(supra) on the other.
9. The decision in the case of Gobald Motor Service Ltd. (supra) of
three Judges’ Bench of this Court has been carefully analysed and
distinguished by the two Judges’ Bench in Helen’s case (supra). In
that, the dictum in Gobald Motor’s case was in relation to the
provisions regarding quantum of damages payable in terms of Sections
1 and 2 of the Fatal Accident Act, 1855, which are held to be
10
2009 (13) SCC 123Page 9
9
materially different. On the other hand, the provision of the Motor
Vehicles Act, 1939 enlarges the scope for computation of
compensation amount. The Court in Helen’s case held that the
observation in Gobald’s case cannot be the basis to claim deduction of
amount receivable by the dependents of the deceased from whatever
source, in the context of provisions of the Motor Vehicles Act as in
force. Even the decision in the case of Sheikhupura Transport
(supra) has been explained and distinguished on the same lines.
10. The question is: whether the principle expounded by the two
Judges’ Bench in Helen’s case, in paragraphs 32 to 35, in particular,
can be doubted? In that case the Court was called upon to answer as
to whether it will be permissible to disallow the deduction of amount
receivable by the dependants of the deceased towards “Life Insurance
Policy”, from the amount of compensation payable under the
provisions of Motor Vehicles Act (in that case Sections 110B, 92A and
92B of the Act of 1939 corresponding to Sections 168, 140 and 141 of
the Act of 1988). Paragraphs 32 to 35 read thus:
“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 toPage 10
10
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 his 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 others
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 tort feasor in spite of his wrongful act
or negligence, which contributes to the death, would have
in many cases no liability or meager 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 hePage 11
11
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.
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
Vehicle Act. There is no correlation 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 correlation 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.
35. Broadly, we may examine the receipt of thePage 12
12
provident fund which is a deferred payment out of the
contribution made by an employee during the tenure of
his service. Such employee or his heirs are entitled to
receive this amount irrespective of the accidental death.
This amount is secured, is certain to be received, while
the amount under the Motor Vehicles Act is uncertain
and is receivable only on the happening of the event, viz.,
accident, which may not take place at all. Similarly,
family pension is also earned by an employee for the
benefit of his family in the form of his contribution in the
service in terms of the service conditions receivable by the
heirs after his death. The heirs receive family pension
even otherwise than the accidental death. No corelation
between the two. Similarly, life insurance policy is
received either by the insured or the heirs of the insured
on account of the contract with the insurer, for which the
insured contributes in the form of premium. It is
receivable even by the insured if he lives till maturity after
paying all the premiums. In the case of death, the
insurer indemnifies to pay the sum to the heirs, again in
terms of the contract for the premium paid. Again, this
amount is receivable by the claimant not on account of
any accidental death but otherwise on the insured’s
death. Death is only a step or contingency in terms of the
contract, to receive the amount. Similarly any cash, bank
balance, shares fixed deposits, etc. though are all a
pecuniary advantage receivable by the heirs on account of
one’s death but all these have no corelation with the
amount receivable under a statute occasioned only on
account of accidental death. How could such an amount
come within the periphery of the Motor Vehicles Act to be
termed as “pecuniary advantage” liable for deduction.
When we seek the principle of loss and gain, it has to be
on a similar and same plane having nexus, inter se,
between them and not to which there is no semblance of
any corelation. The insured (deceased) contributes his
own money for which he receives the amount which has
no corelation to the compensation computed as against
the tortfeasor for his negligence on account of the
accident. As aforesaid, the amount receivable as
compensation under the Act is on account of the injury or
death without making any contribution towards it, then
how can the fruits of an amount received through
contributions of the insured be deducted out of the
amount receivable under the Motor Vehicles act. The
amount under this Act he receives without any
contribution. As we have said, the compensation payable
under the Motor Vehicles Act is statutory while the
amount receivable under the life insurance policy is
contractual.”Page 13
13
(emphasis supplied)
11. This decision has analysed the legal position regarding the
application of the general principle for estimating damages under the
common law. It has also noted the distinguishing features between
the provisions of Fatal Accidents Act, 1855, before its amendment by
Act (3 of 1951) and thereafter. It then found that in Gobald’s case the
Court decided the issue placing reliance on English decisions - as the
provisions applicable at that time were similar to Section 9 of the
English Fatal Accidents Act, 1846. The Court was neither called upon
to determine damages under the Motor Vehicles Act, 1939 nor
consider as to any form of deductions are justified under the Motor
Vehicles Act. The Court noted that the language of Section 110-B of
the Act of 1939 (corresponding to Section 168 of the Act of 1988) is
different from Section 1A of the Fatal Accidents Act, 1855. It held that
Section 110-B of the Act of 1939 empowers the Tribunal to determine
the compensation which appears to it to be “just”. The Court held
that this provision widens the scope for determination of
compensation, which is neither permissible under the Indian Fatal
Accidents Act, 1855 nor under the English Fatal Accidents Act, 1846.
The Court then went on to analyse the decisions of this Court and
held that there is a deliberate departure in the language of the Act ofPage 14
14
1939, revealing the intent of the legislature to confer wider discretion
on the Tribunal. Therefore, the decisions based on the principles
applicable to previous law cannot be invoked while adjudicating the
compensation payable to the claimant under the Motor Vehicles Act.
In Paragraph 28, the Court observed thus:
“28. …….. This show that the word “just” was deliberately
brought it 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, un-equitable, 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.” Page 15
15
(emphasis supplied)
12. The principle expounded in this decision that the application of
general principles under the common law to estimate damages cannot
be invoked for computing compensation under the Motor Vehicles Act.
Further, the “pecuniary advantage” from whatever source must
correlate to the injury or death caused on account of motor accident.
The view so taken, is the correct analysis and interpretation of the
relevant provisions of the Motor Vehicles Act of 1939, and must apply
proprio vigore to the corresponding provisions of the Motor Vehicles
Act, 1988. This principle has been restated in the subsequent decision
of two Judges’ Bench in Patricia S.Mahajan’s case (supra), to reject
the argument of the Insurance Company to deduct the amount
receivable by the dependents of the deceased by way of “social security
compensation” and “Life Insurance Policy”.
13. In the case of Bhakra Beas Management Board (supra),
ostensibly, it may appear that a departure has been made in allowing
deduction of the pecuniary advantage received by the claimants from
other source on account of death of her husband. However, on a closer
analysis of the said decision, two aspects become prominent. Firstly,
the grievance of the appellant Board was that the claimants had filedPage 16
16
an appeal before the High Court for enhancement of compensation of
amount, which was still pending. However, the appeal preferred by the
Board against the same decision was dismissed by the High Court.
The grievance of the appellant was essentially about the inappropriate
approach of the High Court in dismissing its appeal. That can be
discerned from the observation in paragraph 13 of the reported
decision. From the observation found in para 14 of the reported
decision, it is seen that the High Court judgment has been held to be
clearly unsustainable. That must be understood as disapproving the
approach of the High Court in dismissing the appeal filed by the
appellants, though cross appeal filed by the claimants for
enhancement of compensation amount was pending before it. The
second aspect, is that, the Court, to do complete justice between the
parties and for bringing quietus to the long pending litigation (14
years) between them, including to dispose of appeal of the claimants
pending before the High Court, passed an order for full and final
settlement of all the claims inter partes. That can be discerned from
paragraphs 13 and 14, which read thus:
“13. Learned counsel for the respondent supported
the judgment and additionally submitted that appeal of
respondent 1 is pending. In normal course, when two
appeals are directed against the common judgment, both
the appeals should be heard by the same bench of the
High Court. But we find that the High Court had lost
sight of the fact that the benefits which the claimant
receives on account of the death or injury have to be duly
considered while fixing the compensation. It is pointedPage 17
17
out that Respondent 1 was getting Rs.4,700/-p.m. and a
residence has been provided to her and actually the
compassionate appointment was given immediately after
the accident.
“14. In view of what has been stated above, the High
Court’s judgment is clearly unsustainable. However, the
accident took place more than 14 years back and it would
not be desirable to send the matter back to the Tribunal
for fresh consideration. A sum of rupees five lakhs has
been deposited vide this Court’s order dated 1-11-2004.
We are of the considered view that in view of the
background facts, it is just and proper that the sum of
rupees five lakhs already deposited shall be permitted to
be withdrawn by the claimants in full and final settlement
of the claim relatable to the death of the deceased. It is for
the Tribunal to fix the quantum of fixed deposit and the
amount to be released to the claimants.”
(emphasis supplied)
14. Thus understood, it is not an authority of having taken a contra
view than the view expressed in Helen C. Rebello and Patricia’s case.
As a matter of fact, in para 11 of the reported decision, paragraphs 32
to 34 of Helen C. Rebello’s case has been reproduced in its entirety.
No observation is found in the entire decision, to have doubted the
correctness of the dictum in Helen C. Rebello and Patricia’s case.
15. Be that as it may, the term compensation has not been defined in
the Act of 1988. By interpretative process, it has been understood to
mean to recompense the claimants for the possible loss suffered or
likely to be suffered due to sudden and untimely death of their family
member as a result of motor accident. Two cardinal principles run
through the provisions of the Motor Vehicles Act of 1988 in the matterPage 18
18
of determination of compensation. Firstly, the measure of
compensation must be just and adequate; and secondly, no double
benefit should be passed on to the claimants in the matter of award of
compensation. Section 168 of the Act of 1988 makes the first principle
explicit. Sub-section (1) of that provision makes it clear that the
amount of compensation must be just. The word “just” means - fair,
adequate, and reasonable. It has been derived from the Latin word
“justus”, connoting right and fair. In para 7 of State of Harayana &
Anr. vs. Jasbir Kaur & Ors.11
, it has been held that expression “just”
denotes that the amount must be equitable, fair, reasonable and not
arbitrary. In para 16 of Smt. Sarla Verma & Ors. vs. Delhi
Transport Corporation & Anr.12, this Court has observed that the
compensation “is not intended to be a bonanza, largesse or source of
profit”. That however may depend upon facts and circumstances of
each case, as to what amount would be a just compensation.
16. The principle discernable from the exposition in Helen
C.Rebello’s case (supra) is that if the amount “would be due to the
dependants of the deceased even otherwise”, the same shall not be
deductible from the compensation amount payable under the Act of
1988. At the same time, it must be borne in mind that loss of income
11
(2003) 7 SCC 484
12
(2009) 6 SCC 121Page 19
19
is a significant head under which compensation is claimed in terms of
the Act of 1988. The component of quantum of “loss of income”, inter
alia, can be “pay and wages” which otherwise would have been earned
by the deceased employee if he had survived the injury caused to him
due to motor accident. If the dependents of the deceased employee,
however, were to be compensated by the employer in that behalf, as is
predicated by the Rules of 2006 - to grant compassionate assistance
by way of ex-gratia financial assistance on compassionate grounds to
the dependents of the deceased Government employee who dies in
harness, it is unfathomable that the dependents can still be permitted
to claim the same amount as a possible or likely loss of income to be
suffered by them to maintain a claim for compensation under the Act
of 1988.
17. A perusal of the scheme of Rules of 2006 would reinforce the
position that the dependents of the deceased Government employee
are suitably compensated for a specified period by way of financial
assistance in the form of ex-gratia payment on compassionate grounds
equivalent to the pay and other allowances that was last drawn by the
deceased employee in the normal course without raising a specific
claim. Here, we may advert to the recital of the Rules of 2006, which
reads thus:
“No. G.S.R. 19/Const./Art.309/2006.-In exercise of the
powers conferred by the proviso to article 309 of the
Constitution of India, The Governor of Haryana hereby
makes the following rules to grant the compassionate
assistance by way of ex-gratia financial assistance on
compassionate grounds to members of the family of aPage 20
20
deceased Government employee who dies while in
service/missing Government employee, namely:-
(emphasis supplied)
Rule 2 stipulates the objects of the Rules, namely, to assist the
family of a deceased/missing Government employee of Group C and D
category, in tiding over the emergent situation, resulting from the loss
of the bread-earner while in regular service by giving financial
assistance. Rule 3 of the said Rules provides for eligibility to receive
financial assistance under the Rules. As per Rule 4, the eligible family
members are required to submit an application in Form A for
compassionate financial assistance. Rule 5, is of some significance
which provides for the extent of financial assistance. The same reads
thus:
“5.(1) On the death of any Government employee, the
family of the employee would continue to receive as
financial assistance a sum equal to the pay and other
allowances that was last drawn by the deceased employee
in the normal course without raising a specific claim.,-
(a) for a period of fifteen years from the date of death of
the employee, if the employee at the time of his death
had not attained the age of thirty-five years;
(b) for a period of twelve years or till the date the
employee would have retired from Government service
on attaining the age of superannuation, whichever is
less, if the employee at the time of his death had
attained the age of thirty-five years but had not
attained the age of forty-eight years;
(c) for a period of seven years or till the date the
employee would have retired from Government service
on attaining the age of superannuation, whichever is
less, if the employee had attained the age of
forty-eight years.
(2) The family shall be eligible to receive family pensionPage 21
21
as per the normal rules only after the period during
which he receives the financial assistance as above is
completed.
(3) The family of a deceased Government employee who
was in occupation of a Government residence would
continue to retain the residence on payment of normal
rent/license fee for a period of one year from the date of
death of the employee.
(4) Within fifteen days from the date of death of a
Government employee, an ex-gratia assistance of twenty
five thousand rupees shall be provided to the family of
the deceased employee to meet the immediate needs on
the loss of the bread earner.
(5) House Rent Allowance shall not be a part of allowance
for the purposes of calculation of assistance.”
18. Rule 6 pertains to pending cases of ex-gratia assistance, with
which we are not concerned in the present appeals. But to complete
the narrative, we may refer to the said provision. It postulates that all
pending cases of ex-gratia assistance shall be covered under the new
Rules (i.e. Rules of 2006). Further, the calculation of the period and
payment shall be made to such cases from the date of notification of
the new Rules. It further provides that the families will have the option
to opt for the lump sum ex-gratia grant provided in the Rules, 2003 or
2005, as the case may be, in lieu of the monthly financial assistance
provided under the new Rules.
19. Reverting back to Rule 5, sub-clause (1) provides for the period
during which the dependents of the deceased employee may receive
financial assistance equivalent to the pay and other allowances that
was last drawn by the deceased employee in the normal coursePage 22
22
without raising a specific claim. Sub-rule (2) provides that the family
shall be eligible to receive family pension as per the normal Rules only
after the period during which they would receive the financial
assistance in terms of sub-rule (1). Sub-rule (3) guarantees the family
of a deceased Government employee of a Government residence in
occupation for a period of one year from the date of death of the
employee, upon payment of normal rent/license fee. By virtue of
sub-rule (4), an ex-gratia assistance of 25,000/- is provided to the
family of the deceased employee to meet the immediate needs on the
loss of the bread earner. Sub-rule (5) clarifies that house rent
allowance shall not be a part of allowance for the purposes of
calculation of assistance.
20. Rule 5 broadly deals with two aspects. Firstly, to compensate the
dependents of the deceased Government employee by granting
ex-gratia financial assistance on compassionate grounds for the loss of
pay and other allowances for a specified period. The second part of
Rule 5 is to compensate the dependents of the deceased Government
employee by way of allowances and concessions - of retaining
occupation of the Government residence on specified terms, of family
pension and other allowance. As regards the second part, it deals with
income from other source which any way is receivable by the
dependants of the deceased Government employee. That cannot be
deducted from the claim amount, for determination of a just
compensation under the Act of 1988.
21. The claimants are legitimately entitled to claim for the loss of
“pay and wages” of the deceased Government employee against the
tortfeasor or Insurance Company, as the case may be, covered by the
first part of Rule 5 under the Act of 1988. The claimants or
dependents of the deceased Government employee (employed by State
of Haryana), however, cannot set up a claim for the same subject
falling under the first part of Rule 5 - “pay and allowances”, which are
receivable by them from employer (State) under Rule 5 (1) of the Rules
of 2006. In that, if the deceased employee was to survive the motor
accident injury, would have remained in employment and earned his
regular pay and allowances. Any other interpretation of the said Rules
would inevitably result in double payment towards the same head of
loss of “pay and wages” of the deceased Government employee
entailing in grant of bonanza, largesse or source of profit to the
dependants / claimants. Somewhat similar situation has been spelt
out in Section 167 of the Motor Vehicles Act, 1988, which reads thus:
“167. Option regarding claims for compensation in
certain cases.--- Notwithstanding anything contained in the
Workmen’s Compensation Act, 1923 (8 of 1923) where the
death of, or bodily injury to, any person gives rise to a claim
for compensation under this Act and also under the
Workmen’s Compensation Act, 1923, the person entitled to
compensation may without prejudice to the provisions of
Chapter X claim such compensation under either of those
Acts but not under both.”
(emphasis supplied)
22. Indeed, similar statutory exclusion of claim receivable under the
Rules of 2006 is absent. That, however, does not mean that the Claims
Tribunal should remain oblivious to the fact that the claim towards
loss of Pay and wages of the deceased has already been or will be
compensated by the employer in the form of ex-gratia financial
assistance on compassionate grounds under Rule 5 (1). The Claims
Tribunal has to adjudicate the claim and determine the amount of
compensation which appears to it to be just. The amount receivable by
the dependants / claimants towards the head of pay and allowances
in the form of ex-gratia financial assistance, therefore, cannot be paid
for the second time to the claimants. True it is, that the Rules of 2006
would come into play if the Government employee dies in harness even
due to natural death. At the same time, the Rules of 2006 do not
expressly enable the dependents of the deceased Government
employee to claim similar amount from the tortfeasor or Insurance
Company because of the accidental death of the deceased Government
employee. The harmonious approach for determining a just
compensation payable under the Act of 1988, therefore, is to exclude
the amount received or receivable by the dependents of the deceased
Government employee under the Rules of 2006 towards the head
financial assistance equivalent to “pay and other allowances” that was
last drawn by the deceased Government employee in the normal
course. This is not to say that the amount or payment receivable by
the dependents of the deceased Government employee under Rule 5
(1) of the Rules, is the total entitlement under the head of “loss of
income”. So far as the claim towards loss of future escalation of
income and other benefits, if the deceased Government employee had
survived the accident can still be pursued by them in their claim
under the Act of 1988. For, it is not covered by the Rules of 2006.
Similarly, other benefits extended to the dependents of the deceased
Government employee in terms of sub-rule (2) to sub-rule (5) of Rule 5
including family pension, Life Insurance, Provident Fund etc., that
must remain unaffected and cannot be allowed to be deducted, which,
any way would be paid to the dependents of the deceased Government
employee, applying the principle expounded in Helen C.Rebello and
Patricia Jean Mahajan’s cases (supra).
23. A Priori, appellants must succeed only to the extent of amount
receivable by the dependents of the deceased Government employee in
terms of Rule 5(1) of the Rules 2006, towards financial assistance
equivalent to the loss of pay and wages of the deceased employee for
the period specified.
24. As no other point arises for consideration, the appeals must
succeed in part to the extent indicated above.
25. Accordingly, the appeals are partly allowed in the above terms
with no order as to costs.
………………………………..J.
(Ranjan Gogoi)
………………………………..J.
(Prafulla C.Pant)
………………………………….J.
(A.M.Khanwilkar)
New Delhi,
23rd September, 2016
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO. 26882/2013
National Insurance Co.Ltd. ….Petitioners
Vs.
Ramrajsinh Zala & Ors. …..Respondents
WITH C.A.No.8867/2012
O R D E R
The issue involved in these matters is not similar to the issue decided
in the appeals disposed of by a separate judgment today, concerning the effect of
benefit derived under the Haryana Compassionate Assistance to the Dependents
of Deceased Government Employees Rules, 2006 by the dependants of the
deceased Government employees. Hence, delinked. To be listed before an
appropriate Bench.
…………………………………..J.
(Ranjan Gogoi)
……………………………………J.
(Prafulla C.Pant)
……………………………………J.
(A.M.Khanwilkar)
New Delhi,
23rd September, 2016
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