Smt.Metri Sharma and ors Vs. Rakesh Kumar and ors - Court Judgment

1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :JUDGMENT

: S.B.CIVIL MISC.

APPEAL NO.1641/2012 Smt.

Metri Sharma & ORS.versus Shri Rakesh Kumar & ORS.Date of Judgement :: 13.12.2013 PRESENT HON'BLE Mr.JUSTICE ARUN BHANSALI Mr.C.S.Kotwani, for the appellants.

Mr.Santosh Choudhary, for the respondents.

---- BY THE COURT: With the consent of the parties, the appeal is heard and decided finally.

This appeal is directed against judgment and award dated 12.06.2012 passed by the Motor Accident Claims Tribunal, Doongarpur ('the Tribunal').whereby, for death of one Krishna Chandra, the Tribunal has awarded a sum of Rs.7,02,140/- alongwith interest @ 6%.

It has been further directed in the award that if the amount of compensation is not paid within a period of one month, the claimants would be entitled to interest @ 9%.

The facts in brief may be noticed thus: on 25.03.2009 at about 12:30 PM one Krishna Chandra was travelling on a Scooty, when respondent No.1 Rakesh Kumar, who was driving motor cycle, struck him from behind, which resulted in several injuries to said Krishna Chandra; he was referred for treatment to 2 Gujarat and on way to Himmat Nagar he succumbed to injuries; application for compensation ('the application') was filed by the appellants - wife, son and married daughter of the deceased Krishna Chandra, inter alia, with the claim that deceased was aged 54 years and was employed as Upper Division Clerk with the Education Department and was getting Rs.23,404/- as salary and, therefore, the claimants were entitled to a sum of Rs.44,27,200/- as compensation.

Reply to the application was not filed by respondent Nos.1 and 2.

However, respondent No.3 Insurance Company filed its reply and disputed the averments contained in the application.

The Tribunal framed four issues and came to the conclusion that the accident occurred on account of rash and negligent driving by respondent No.1 Rakesh Kumar.

The defence raised by the Insurance Company seeking exoneration from liability was negatived and, as indicated above, the Tribunal awarded a sum of Rs.7,02,140/- as compensation.

It is submitted by learned counsel for the appellants that the Tribunal clearly fell in error in deducting the amount of pension and salary being received by appellant No.1 having been granted compassionate appointment.

Reliance was placed on the judgment of Hon'ble Supreme Court in the case of Vimal Kanwar & Ors.v.Kishore Dan & ORS.: 2013 ACJ1441 On the other hand, learned counsel for the respondent Insurance Company submitted that the award passed by the Tribunal is just and reasonable and does not call for any 3 interference.

It was also submitted that awarding penal interest on account of default in depositing the amount of compensation within a period of one month is wholly unjust.

Reliance was placed on judgment of Hon'ble Supreme Court in the case of Bhakra Beas Management Board v.

Kanta Aggarwal & ORS.: 2008 ACJ2372and National Insurance Company Limited v.

Keshav Bahadur : (2004) 2 SCC370 I have considered the rival submissions.

The Tribunal while computing the amount of compensation awarded the following sums:- (a) Loss of income Rs.6,62,640/- (b) Funeral expenses Rs.2,000/- (c) Conveyance allowance Rs.2,000/- (d) Hospitalization expenses Rs.500/- (e) Loss of consortium Rs.15,000/- (f) Loss of love and affection Rs.20,000/- While calculating the loss of income based on the salary certificate issued by the Department, where the deceased was serving, it was found that his basic salary was Rs.17,730/- and was receiving D.A.of Rs.3,900/-.

However, the Tribunal deducted a sum of Rs.8,000/-, which the appellant No.1 was receiving as pension and Rs.6,100/- as appellant No.1 was appointed on compassionate basis as L.D.C.in the Department, where, the deceased was working.

The issues of deduction raised are no more res integra.

In Vimal Kanwar (supra) Hon'ble Supreme Court while dealing with 4 the said issues held and observed as under:- “19.

The fiRs.issue is “whether provident fund, pension and insurance receivable by claimants come within the periphery of the Motor Vehicles Act to be termed as 'pecuniary advantage' liable for deduction?.”.

The aforesaid issue fell for consideration before this court in Helen C.

Rebello v.

Maharashtra State Road Trans.

Corpn., 1999 ACJ10(SC).In the said case, this court held that provident fund, pension, insurance and similarly any cash, bank balance, shares, fixed deposits, etc.are all a 'pecuniary advantage' receivable by the heirs on account of one's death but all these have no correlation with the amount receivable under a statute occasioned only on account of accidental death.

Such an amount will not come within the periphery of the Motor Vehicles Act to be termed as 'pecuniary advantage' liable for deduction.

The following was the observation and finding of this court: “(37) Broadly, we may examine the receipt of the 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 correlation between the two.

Similarly, life insurance policy amount is received either by the insured or the heirs of the insured on account of the contract with the insurer, for which 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, 5 bank balance, shares, fixed deposits, etc., though all are pecuniary advantage receivable by the heirs on account of one's death but all these have no correlation 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 correlation.

The insured (deceased) contributes his own money for which he receives the amount which has no correlation to the compensation computed as against the tortfeaasor 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.”

.

20.

The second issue is “whether the salary receivable by the claimant on compassionate appointment comes within the periphery of the Motor Vehicles Act to be termed as 'periphery advantage' liable for deduction?.”.

'Compassionate appointment' can be one of the conditions of service of an employee, if a scheme to that effect is framed by the employer.

In case the employee dies in harness, i.e., while in service leaving behind the dependants, one of the dependants may request for compassionate appointment to maintain the family of the deceased employee who dies in harness.

This cannot be stated to be an advantage receivable by the heirs on account of one's death and has no correlation with the amount receivable under a statute occasioned on account of accidental death.

Compassionate appointment may have nexus with the death of an employee while in service but it is not necessary that it should have a correlation with the accidental death.

An employee dies in harness even in normal course, due to illness and to maintain the family of the deceased one of the dependants may be entitled for compassionate 6 appointment but that cannot be termed as 'pecuniary advantage' that comes under the periphery of Motor Vehicles Act and any amount received on such appointment is not liable for deduction for determination of compensation under the Motor Vehicles Act.”

.

So far as the judgment of Hon'ble Supreme Court in the case of Bhakra Beas Management LTD.(supra) is concerned, the issue before the Court in a fatal accident case was whether the benefits which claimant receives on account of death of her husband have to be deducted while computing the compensation and, the Court observed that the benefits, which the claimant receives on account of death or injury have to be duly considered.

The law laid down by Hon'ble Supreme Court in the case of Vimla Kanwar (supra) takes into consideration the fact as to whether the compassionate appointment comes within the periphery of the Motor Vehicles Act to be termed as 'pecuniary advantage' and is liable for deduction and on consideration, it has been held that the same cannot be said to be pecuniary advantage so as to come within the periphery of Motor Vehicles Act and the said amount was not liable for deduction for determination of compensation under the Motor Vehicles Act.

As such, the deduction of amount of Rs.14,100/- i.e.Rs.8,000/- as pension and Rs.6,100/- being received as salary while working as LDC, cannot be deducted from the amount of loss of income.

However, the amount to be awarded would be subject to income tax, which has to be deducted in terms of judgment of Vimla Kanwar (supra).Consequently, in the present case for loss of income, the appellants would be entitled to 21630x12=2,59,560 – 15,000 7 (income tax) = 2,44,560 – 81,520 (1/3rd as personal expenses) x 11 = 17,93,440/-.

Rest of the amount under other heads awarded by the Tribunal does not call for any interference.

So far as awarding of penal interest in case the amount of compensation was not deposited within a period of one month is concerned, the said direction is contrary to the law laid down by Hon'ble Supreme Court in the case of Keshav Bahadur (supra) and, therefore, the said order cannot be sustained.

In view of the above discussion, the appeal is partly allowed.

The award passed by the Tribunal is modified to the extent that appellants would be entitled to a sum of Rs.18,32,940/- instead of Rs.7,02,140/- as awarded by the Tribunal and the claimants would also be entitled to interest @ 6% per annum on the said amount from the date of filing application i.e.01.10.2010.

The amount of enhanced compensation be paid within a period of three months.

No costs.

(ARUN BHANSALI).J.

A.K.Chouhan/ 56