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2001 DIGILAW 355 (CAL)

Sabita Sarkar v. Oriental Insurance Co. Ltd.

2001-06-25

HRISHIKESH BANERJI, SAMARESH BANERJEA

body2001
JUDGMENT Banerjea, J. : The present appeal has been preferred by the claimant/appellants against the judgment and award dated August 11, 1998 passed by the learned Judge, MAC. Tribunal (6th Court) Alipore, in M.A.C. Case No. 14 of 1997, whereby the application of the petitioner under Section 166 of the Motor Vehicles Act, 1988, had been allowed in part. But, it appears to us that the claimants are actually aggrieved by the assessment of compensation and pray for enhancement of the amount. 2. It may also be recorded, in this connection, that in the present appeal an application was made by the claimant/appellants being C.A.N. No. 869/2001 for final disposal of the appeal in view of the decision of the Supreme Court reported in (1) AIR 1985 SC 106 as also other decisions of the High Courts and the Supreme Court whereupon ultimately the appeal was directed to be heard along with the application. 3. Thereafter, both the appeal and the application have been heard together. 4. The application under Section 166 of the said Act was filed by the widow of the victim on her behalf and on behalf of her minor son and also by her mother-in-law claiming a compensation of Rs. 7,50,000/-. 5. After considering the entire evidence and materials-on-records, the Tribunal came to a specific finding that the victim died due to rash and negligent driving on the part of the driver of the offending vehicle being a Taxi bearing No. WB-04-2331. 6. From the evidence, it appears that the last pay of the victim was Rs. 5700/- per month and his age at the time of accident was 44 years as the victim was born on 31.1.53. 7. On such evidence although, the learned Judge thereafter, proceeded to calculate the amount of compensation which the claimants are entitled to receive, it appears the learned Judge took into consideration the fact that family of the victim was entitled to pension to the extent of 50% of his last pay and on such basis the learned Judge deducted such amount for the purpose of determining what was the loss towards dependency of the family of the victim. 8. 8. Learned Counsel appearing for the appellants/claimants has submitted, inter alia, that the learned Judge has fell into error in taking into consideration the amount of family pension which was to be received by the family of the said victim as in view of the judgment of the Supreme Court, such amount is not to be taken into consideration. 9. It has rightly been contended by the learned Counsel for the appellants that in view of the decision of the Supreme Court in the case of (2) Helen C. Rebello and Ors. v. Maharashtra State Road Transport Corporation and Another reported in 1999(1) SC 90, the question whether such family pension or any other benefit which the claimants might be entitled to receive can be taken into consideration for the purpose of assessment of the compensation is no more res integra. 10. In this connection the relevant observations of the Supreme Court may be quoted hereunder:- "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 occasion 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. 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..." "Thus, it would not include that which the claimant received on account of other forms of death which he would have received even apart from accidental death. Thus, such pecuniary advantage would have no correlation 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. Thus, such pecuniary advantage would have no correlation 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." "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 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. 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." "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 Vehicle 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 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............." 11. Following the aforesaid decision of the Supreme Court a Division Bench of this Court in the case of (3) Mousumi Hansda v. Oriental Insurance Co. Ltd. reported in 2000(3) CLT 481 (HC) held that the pecuniary advantage gained by the heirs and legal representatives of the deceased cannot be interpreted to mean pecuniary advantage resulting from accidental death and therefore, the death of an employee in harness cannot be termed as accidental death within the meaning of the said provisions. 12. Ltd. reported in 2000(3) CLT 481 (HC) held that the pecuniary advantage gained by the heirs and legal representatives of the deceased cannot be interpreted to mean pecuniary advantage resulting from accidental death and therefore, the death of an employee in harness cannot be termed as accidental death within the meaning of the said provisions. 12. It appears to us that the attention of the learned Judge of the Tribunal was drawn by the learned Advocate for the claimants to the different decisions of the High Courts expressing the same view. But, notwithstanding such decisions, the learned Judge being of the view that because of divergence of opinion among the High Court judgments, the pension of the family has to be taken into consideration in assessing the compensation. 13. It, however, appears that the judgment of the Supreme Court in the Rebello's case (supra), was overlooked by the learned Judge. 14. In such view of the matter, the Tribunal could not have taken into consideration the amount of family pension received by the family members of the deceased for the purpose of such compensation. 15. While the learned Counsel appearing for the appellants has further submitted that in the matter of multiplier the learned Judge fell into error by taking 10 as the multiplier, learned Counsel appearing for the Insurance Company submitted that it was correctly applied. 16. It was also sought to be argued by the learned Counsel appearing for the respondent that the learned Judge could not have applied such multiplier at all in view of the fact that the same, as per the schedule, is a matter to be applied in case of an application under Section 163A of the said Act. 17. It has been further submitted relying on a Supreme Court decision that such Schedule has been wrongly prepared being full of mistakes. 18. It is true that the Supreme Court in the case of (4) U.P. State Road Transport Corporation and Ors. v. Trilok Chandra and Ors. 17. It has been further submitted relying on a Supreme Court decision that such Schedule has been wrongly prepared being full of mistakes. 18. It is true that the Supreme Court in the case of (4) U.P. State Road Transport Corporation and Ors. v. Trilok Chandra and Ors. reported in 1996(4) SCC 362 and (5) Kaushnama Begum v. New India Assurance Company Ltd. reported in 2001 WBLR (SC) 207 held that such schedule is full of mistakes at the same time it has also been held by the Supreme Court that such formula relating to multiplier prepared in the said schedule of the Act can certainly be used as a guide-line for the purpose of assessment of compensation. 19. In fact, in the case of Kaushnama Begum v. New India Assurance Company Ltd. reported in 2001 WBLR (SC) 207 the Supreme Court being fully conscious of the position that such schedule has been introduced in case of an application under Section 163A of the Motor Vehicles Act also applied such formula as a safe guide-line for the purpose of assessment in an application under Section 166 of the Act. Such being the position, we are unable to accept the submission of the learned Counsel appearing for the Insurance Company that since the present application is not under Section 163A but under Section 166, such schedule cannot be looked into for the purpose of deciding what should be the multiplier in the instant case. 20. Although, it has also been submitted by the learned Counsel appearing for the Insurance Company that the multiplier was rightly applied by the learned Judge as 10, we are unable to appreciate what was the rationale of treating 10 as the multiplier under the facts and circumstances of this case. 21. There is no dispute that the age of the victim was 44 years and therefore, if the said schedule is followed as guide-line 15 would be the multiplier. 22. Following the recent judgment of the Supreme Court in the case of Smt. Kaushnama Begum v. New India Assurance Co. 21. There is no dispute that the age of the victim was 44 years and therefore, if the said schedule is followed as guide-line 15 would be the multiplier. 22. Following the recent judgment of the Supreme Court in the case of Smt. Kaushnama Begum v. New India Assurance Co. Ltd. reported in 2001 WBLR (SC) 207 we are unable to accept the contention of the learned Advocate appearing for the Insurance Company that since the victim was 44 years of age at the time of the accident and therefore, he had about 14 to 16 years of service left, the Tribunal rightly applied 10 as the multiplier in determining what would be the just and proper compensation in case of the victim who was employed somewhere. What would be the determining years of service left, not necessarily is the conclusive factor to be taken into consideration as even after retirement a person may obtain retirement benefit and pension and may gainfully self-employ himself. 23. As pointed out hereinabove, that the formula laid down in the aforesaid schedule can be taken as a safe guide-line for determining the amount of just and appropriate compensation. 24. For the reason aforesaid, we are of the view that 15 should be the multiplier. 25. Admittedly the monthly salary of the victim was Rs. 5,700/- and therefore, his annual income amounts to Rs. 68,400/-. If 1/3rd is deducted from the same towards family expenses such annual income comes to Rs. 45,600/-. Each of the victim being 44 years at the relevant point of time, 15 be the multiplier and applying such multiplier Rs. 6,84,000/- becomes the amount of compensation. 26. If Rs. 2,000/- for funeral expenses, Rs. 5,000/- as loss of consortium, Rs. 2,500/- towards loss of estate are added the total amount of compensation becomes Rs. 6,93,500/- to be paid to the claimant/applicant after adjustment of the amount already paid under Section 140 of the Motor Vehicles Act. 27. The judgment and award of the Tribunal thus stands modified to the extent indicated above. 28. It appears that the appellant has already deposited before the Tribunal the sum of Rs. 3,20,000/- towards the awarded amount and Rs. 50,000/towards statutory deposit. 27. The judgment and award of the Tribunal thus stands modified to the extent indicated above. 28. It appears that the appellant has already deposited before the Tribunal the sum of Rs. 3,20,000/- towards the awarded amount and Rs. 50,000/towards statutory deposit. The insurance company shall deposit 12% interest per annum on the aforesaid sum from the date of the application before the Tribunal within 6 weeks and the claimants will be entitled to withdraw the aforesaid sum without furnishing security. The balance of the awarded amount, in view of the modification of the award by us shall be deposited by the Insurance Company before the Tribunal within 6 weeks form date and the claimants will be entitled to withdraw the same without furnishing security. The appeal and application thus stand disposed of without any order as to costs. Banerji, J. : I agree.