Mst.Manwati and ors. Vs. Satyendra Kumar Jaiswal and ors. - Court Judgment

Excerpt:
ection 11 (2): [b.n. agrawal, g.s. singhvi & aftab alam, jj] contribution due from employer payment priority given by section 11(2) held, the priority given to the dues of provident fund etc., in section 11 is not hedged with any limitation or condition. rather, a bare reading of the section makes it clear that the amount due is required to be paid in priority to all other debts. any doubt on the width and scope of section 11 qua other debts is removed by the use of expression all other debts in both the sub-sections. this would mean that the priority clause enshrined in section 11 will operate against statutory as well as non-statutory and secured as well as unsecured debts including a mortgage or pledge. sub-section (2) was designedly inserted in the act for ensuring that the provident fund dues of the workers are not defeated by prior claims of secured or unsecured creditors. this is the reasons why the legislature took care to declare that irrespective of time when a debt is created in respect of the assets of the establishment, the dues payable under the act would always remain first charge and shall be paid first out of the assets of the establishment notwithstanding anything contained in any other law for the time being in force. it is, therefore, reasonable to take the view that the statutory first charge created on the assets of the establishment by sub-section (2) of section 11 and priority given to the payment of any amount due from an employer will operate against all types of debts.in the instant case the sugar mill had pledged sugar bags with bank as security for repayment of loan. the attachment and sale of these sugar bags for realisation of p.f dues was challenged by the bank on ground that by virtue of the deeds of pledge executed by the sugar mills, the bank had become owner of the sugar bags and the same could not have been attached and sold for realisation of the amount due under the act.held, in the contract of pawn or pledges the pawnee/pledge has only a special property in the pledge but the general property remains with the pawner/pledgor and wholly reverts to him on discharge of debts. the right to property vests in the pledge only so far as necessary to secure his debt. therefore, the deeds of pledge executed by the management of the sugar mills as security for repayment of loan etc., did not have the effect of transferring of the ownership of the sugar bags to the bank and the recovery officer did not commit any illegality by attaching the same and the high courts was fully justified in directing payment of a portion of the sale price to the assistant commissioner for being appropriated towards the provident fund dues of the workers. section 11(2), 7-q & 14-b: provident fund dues priority in payment over all other debts held, sub-section (2) was inserted in section 11 by amendment act no.40 of 1973 with a view to ensure that payment of provident fund dues of the workers are not defeated by the prior claims of the secured and/or of the unsecured creditors. while enacting sub-section (2), the legislature was conscious of the fact that in terms of existing section 11 priority has been given to the amount due from an employer in relation to an establishment to which any scheme or fund is applicable including damages recoverable under section 14-b and accumulations required to be transferred under section 15 (2). the legislature was also aware that in case of delay the employer is statutorily responsible to pay interest in terms of section 17, therefore, there is no plausible reasons to give a restricted meaning to the expression any amount due form the employer and confine it to the amount determined under section 7-a or the contribution payable under section 8. if interest payable by the employer under section 7-q and damages leviable under section 14 are excluded from the ambit of expression any amount due from an employer, every employer will conveniently refrain from paying contribution to the fund and other dues and resist the efforts of the concerned authorities to recover the dues as arrears of land revenue by contending that the movable or immovable property of the establishment is subject to other debts. any such interpretation would frustrate the object of introducing the deeming provision and non obstante clause in section 11 (2). it cannot be said that the amount of interest payable under section 7-q and damages leviable under section 14-b do not form part of the amount due from an employer for the purpose of section 11(2) of the act, and cannot, therefore, be treated as first charge on the assets of the establishment payable in priority to all other debts within the meaning of section 11 (2). 1. being dissatisfied with the award dated 30.11.02 passed by second additional motor accident claims tribunal, sidhi (in short 'the tribunal') in claim case no.62/96, appellants/claimants have preferred this appeal under section 173 of motor vehicle act, 1988 (for brevity 'the act').2. appellants/claimants preferred a claim petition under section 166 of motor vehicle act before the tribunal seeking compensation to the tune of rs.5,67,900/- on account of death of jaichand sharma in the motor accident. appellants/claimants are the wife and children of deceased jaichand sharma. according to the claimants, on 28.4.89 about 7:30 in the evening when deceased jaichand sharma was returning home on his bicycle, respondent no.2 driving the truck no.uhz-8854 rashly and negligently dashed against him resulting into his death. the offending vehicle belonged to respondent no.1 and was insured with respondent no.5/new india insurance co. deceased jaichand sharma was 40 years of age at the time of accident and was working in ntpc, getting a salary of rs.2000/- per month plus bonus. claimants/appellants, therefore, claimed compensation under various heads from the respondents no.1, 2 and 5 on account of death of jaichand sharma in the motor accident. the claim petition was opposed by the respondents.3. the tribunal, after enquiry, came to hold that deceased jaichand sharma died as a result of rash and negligent driving of truck no.uhz-8854 by respondent no.2, belonging to respondent no.1 and 2insured with respondent no.5/insurance co. the tribunal also held that the deceased was 40 years of age at the time of accident and was working in ntpc getting a salary of rs.2000/- per month, therefore, deducting 1/3rd for his personal expenses, applied the multiplier of 16 and assessed the loss of dependency of the claimants at rs.2,56,000/- besides rs.5,000/-for loss of consortium and rs.2500/- for loss of estate, rs.2000/- for funeral expenses and thus held that the claimants were entitled to a total sum of rs.2,65,500/- as compensation. however, due to inadvertence or typing error the tribunal passed an award of only rs.2,56,000/- in favour of the appellants/claimants and against respondents no.1, 2 and 5.4. learned counsel for the appellants submitted that the tribunal has not properly assessed the loss of dependency of the claimants and gave meagre sum under other heads and thus granted inadequate compensation.5. there has been a preliminary objection on behalf of respondent no.5 that the insurance company has not been shown as respondent/non-applicant in the cause title of the impugned award. however, it was conceded at bar that new india insurance co./respondent no.5 was a party in the claim case before the tribunal and it appears that due to oversight its name has not been mentioned as respondent in the cause title of the impugned award.6. learned counsel for respondents further submitted that just compensation has been awarded to the claimants/appellants and no interference is called for.7. there is no challenge to the finding that deceased jaichand sharma died as a result of rash and negligent driving of truck no.uhz-8854 by respondent no.2, belonging to respondent no.1 and insured with respondent no.5/new india insurance co. at the time of accident.8. as regards the quantum of compensation, the tribunal has recorded a finding that the deceased was working in ntpc and getting a salary of rs.2363/- per month, but calculated the compensation on the basis of salary at rs.2000/- per month, applied the multiplier of 16 and assessed the loss of dependency of the claimants at rs.2,56,000/-. although, considering the age of the deceased as forty years, proper multiplier was applied, yet the tribunal has not assigned sound reasons 3for reducing the amount of salary while calculating the loss of dependency. as per salary certificate (ex.p-1), which was not disputed, deceased used to get net salary of rs.2363/- per month. therefore, after deducting 1/3rd in round figure from this amount and applying multiplier of 16, claimants/appellants would be entitled to get a further sum of rs.38,400/- under the head of loss of dependency. likewise, the claimants/appellants are also entitled to get an amount of rs.15,000/- under the head of loss of estate in the facts and circumstances of the case and a sum of rs.10,000/- for loss of consortium to the appellant no.1 plus rs.2,000/- for funeral expenses of the deceased, as already awarded by the tribunal. when the aforesaid amount is added to the amount of rs.2,56,500/- assessed by the tribunal, as the loss of dependency, the total amount comes to rs.3,21,400/- to which the claimants/appellants are entitled. the amount of impugned award is accordingly modified to a sum of rs.3,21,400/-. the amount enhanced in appeal shall carry interest @ 6% per annum from the date of filing of claim petition till realization.9. the differential amount shall be deposited by respondent no.5/insurance co. within two months from today.10. the award amount shall be disbursed to appellants/claimants in accordance with law laid down in the case of general manager, kerala state road transport corporation v. mrs. susamma thomas & others, air 1994 sc 1631.11. appeal stands allowed to the aforesaid extent. no cost.

Judgment:
1. Being dissatisfied with the award dated 30.11.02 passed by Second Additional Motor Accident Claims Tribunal, Sidhi (in short 'the tribunal') in Claim Case No.62/96, appellants/claimants have preferred this appeal under Section 173 of Motor Vehicle Act, 1988 (for brevity 'the Act').

2. Appellants/claimants preferred a claim petition under Section 166 of Motor Vehicle Act before the tribunal seeking compensation to the tune of Rs.5,67,900/- on account of death of Jaichand Sharma in the motor accident. Appellants/claimants are the wife and children of deceased Jaichand Sharma. According to the claimants, on 28.4.89 about 7:30 in the evening when deceased Jaichand Sharma was returning home on his bicycle, respondent no.2 driving the truck No.UHZ-8854 rashly and negligently dashed against him resulting into his death. The offending vehicle belonged to respondent no.1 and was insured with respondent no.5/New India Insurance Co. Deceased Jaichand Sharma was 40 years of age at the time of accident and was working in NTPC, getting a salary of Rs.2000/- per month plus bonus. Claimants/appellants, therefore, claimed compensation under various heads from the respondents no.1, 2 and 5 on account of death of Jaichand Sharma in the motor accident. The claim petition was opposed by the respondents.

3. The tribunal, after enquiry, came to hold that deceased Jaichand Sharma died as a result of rash and negligent driving of truck No.UHZ-8854 by respondent no.2, belonging to respondent no.1 and 2

insured with respondent no.5/Insurance Co. The tribunal also held that the deceased was 40 years of age at the time of accident and was working in NTPC getting a salary of Rs.2000/- per month, therefore, deducting 1/3rd for his personal expenses, applied the multiplier of 16 and assessed the loss of dependency of the claimants at Rs.2,56,000/- besides Rs.5,000/-for loss of consortium and Rs.2500/- for loss of estate, Rs.2000/- for funeral expenses and thus held that the claimants were entitled to a total sum of Rs.2,65,500/- as compensation. However, due to inadvertence or typing error the tribunal passed an award of only Rs.2,56,000/- in favour of the appellants/claimants and against respondents no.1, 2 and 5.

4. Learned counsel for the appellants submitted that the tribunal has not properly assessed the loss of dependency of the claimants and gave meagre sum under other heads and thus granted inadequate compensation.

5. There has been a preliminary objection on behalf of respondent no.5 that the insurance company has not been shown as respondent/non-applicant in the cause title of the impugned award. However, it was conceded at bar that New India Insurance Co./respondent no.5 was a party in the claim case before the tribunal and it appears that due to oversight its name has not been mentioned as respondent in the cause title of the impugned award.

6. Learned counsel for respondents further submitted that just compensation has been awarded to the claimants/appellants and no interference is called for.

7. There is no challenge to the finding that deceased Jaichand Sharma died as a result of rash and negligent driving of truck No.UHZ-8854 by respondent no.2, belonging to respondent no.1 and insured with respondent no.5/New India Insurance Co. at the time of accident.

8. As regards the quantum of compensation, the tribunal has recorded a finding that the deceased was working in NTPC and getting a salary of Rs.2363/- per month, but calculated the compensation on the basis of salary at Rs.2000/- per month, applied the multiplier of 16 and assessed the loss of dependency of the claimants at Rs.2,56,000/-. Although, considering the age of the deceased as forty years, proper multiplier was applied, yet the tribunal has not assigned sound reasons 3

for reducing the amount of salary while calculating the loss of dependency. As per salary certificate (Ex.P-1), which was not disputed, deceased used to get net salary of Rs.2363/- per month. Therefore, after deducting 1/3rd in round figure from this amount and applying multiplier of 16, claimants/appellants would be entitled to get a further sum of Rs.38,400/- under the head of loss of dependency. Likewise, the claimants/appellants are also entitled to get an amount of Rs.15,000/- under the head of loss of estate in the facts and circumstances of the case and a sum of Rs.10,000/- for loss of consortium to the appellant no.1 plus Rs.2,000/- for funeral expenses of the deceased, as already awarded by the tribunal. When the aforesaid amount is added to the amount of Rs.2,56,500/- assessed by the tribunal, as the loss of dependency, the total amount comes to Rs.3,21,400/- to which the claimants/appellants are entitled. The amount of impugned award is accordingly modified to a sum of Rs.3,21,400/-. The amount enhanced in appeal shall carry interest @ 6% per annum from the date of filing of claim petition till realization.

9. The differential amount shall be deposited by respondent no.5/Insurance Co. within two months from today.

10. The award amount shall be disbursed to appellants/claimants in accordance with law laid down in the case of General Manager, Kerala State Road Transport Corporation v. Mrs. Susamma Thomas & others, AIR 1994 SC 1631.

11. Appeal stands allowed to the aforesaid extent. No cost.