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Patna High Court · body

2005 DIGILAW 1060 (PAT)

Sheorati Devi v. Sabhapati Singh

2005-12-13

M.L.VISA

body2005
Judgment 1. Both these appeals which are directed against the common judgment dated 8.2.2001 passed by the Court of Claim Tribunal-cum-District Judge, Vaishali at Hajipur in Claim Case No. 30/99 and Claim Case No. 31/99 awarding compensation under sec. 166 of the Motor Vehicles Act, 1988 (in short MV Act, 1988) are being disposed of by this order. 2. The facts of the case are that on 7.3.1999 both the deceased Bharat Singh and Uday Chandra Pd. Singh were going to Hajipur on a scooter to catch a train at Hajipur Railway Station. They were being followed by two sons of deceased Uday Chandra Pd. Singh on Hero Honda Motorcycle. At about 4.30 p.m. when both the deceased reached near Jharua More at Hajipur, a tractor along with trailer bearing registration No. BR-31/6804 and BR-31/7669 came sharply and negligently from the side of Hajipur town and dashed against the scooter and both the deceased were thrown out and received multiple injuries. Deceased Bharat Singh was admitted to Sadar Hospital, Hajipur from where he was shifted to Patna Medical Coh-ge and Hospital where he died in course of treatment. Deceased Uday Chandra Pd. Singh was first admitted to Budha Orthopedic Hospital, Hajipur from where he was shifted to the clinic of Dr. R.C. Ram, Patna where he also died. At the time of death Bharat Singh was aged about 46 years and was employed as Sub-Divisional Engineer in the office of Regional Engineering Maintenance Telcom Bihar Circle, Patna and his monthly income was Rs. 13053.00 . He died leaving behind his widow and son, appellant Nos. 1 and 2 respectively of M.A. No. 202 of 2001 and a minor son. About deceased Uday Chandra Pd. Singh it is alleged that at the time of death he was a Central Government employee posted as Sectional Supervisor in the office of the General Manager, Telcom Department, Jamshedpur. He was aged about 55 years and he died leaving behind his widow, two sons and one unmarried daughter, appellants of M.A. No. 203 of 2001 and his monthly salary was Rs. 8,444.00 . At the time of accident the tractor in question was under Insurance Policy issued by National Insurance Company Limited, respondent No. 3 in both the appeals. Appellants of M.A. No. 202 of 2001 filed Claim Case No. 30/99 claiming compensation to the tune of Rs. 8,444.00 . At the time of accident the tractor in question was under Insurance Policy issued by National Insurance Company Limited, respondent No. 3 in both the appeals. Appellants of M.A. No. 202 of 2001 filed Claim Case No. 30/99 claiming compensation to the tune of Rs. 13,99,5121- and appellants M.A. No. 203 of 2001 filed Claim Case No. 31/99 claiming compensation to the tune of Rs. 7,99,072.00 . The Court below awarded a sum of Rs. 3 lacs to appellants of M.A. No. 202 of 2001 and a sum of Rs. 2 lacs to appellants of M.A. No. 203 of 2001 with interest at the rate of 12% and Rs. 100.00 as lawyers fee and Rs. 25.00 as lawyers clerk fee. 3. E3eing aggrieved by the judgment of the Court below appellants have preferred these appeals on the ground that the Court below has wrongly deducted the family pension from the amount of compensation and it has wrongly estimated the transport and personal expenses at a higher figure, it has not granted any amount for funeral expenses, loss of consortium loss of estate etc. and it has not applied correct multiplier. Appellants have prayed for higher compensation to the extent of their claim. 4. Notices to owner and driver of tractor who are respondent Nos. 1 and 2 respectively were issued but they have not appeared in spite of service. The matter was heard at the stage when the case was listed for hearing under Order XLI Rule 11 of the Code of Civil Procedure and with the consent of both the parties it was heard for final disposal of this appeal at that stage. 5. The points for consideration in this appeal are that whether the Court below was right in deducting the amount of family pension while calculating the actual loss of dependency and whether the amount deducted by the Court below for personal expenses of deceased and multiplier are correct according to law. 6. Learned counsel appearing on behalf of Insurance Company, respondent No. 3, has argued that the amount of family compensation which the appellants are receiving has to be deducted for the purpose of determining the amount of compensation. He has relied upon an authority of Orissa High Court reported in 1 (1987) ACC 236, in the case of Bimal Kumar Das V/s. Prijaia Bewa and Ors. and Nisamani Bewa and Ors. He has relied upon an authority of Orissa High Court reported in 1 (1987) ACC 236, in the case of Bimal Kumar Das V/s. Prijaia Bewa and Ors. and Nisamani Bewa and Ors. V/s. Bimal Kumar Das and Anr. In that case although it was argued on behalf of the appellants that the refusal of tribunal to award any compensation on account of the fact that claimants were getting family pension of 135.00 per month was not reasonable but learned counsel of appellants relied upon a decision of that Court reported in 1977 ACJ 196 Jagannath Sinha and Ors. v. Khirodini and Ors., which in turn relied upon a decision of the Delhi High Court reported in 1975 ACJ 56 , Bhagwanti Devi V/s. Ish Kumar. In that case it was held that pension is not to be excluded for the purpose of determining the just compensation on the ground that pension in those cases was on account of deferred wages. The Orissa High Court observed that family pension to dependents of a Government employee is a condition of service. The same is not a natural right. Unlike contributory provident fund, no contribution is made for the family pension by an employee. The employee gets his full pay as prescribed in the scale. Family pension, therefore, cannot be termed as deferred wages under the Orissa Liberalised Pension Rules amended from time to time. The rules under which pension was treated to be deferred wage by this Court in 1977 ACJ 196, (Supra) are not reproduced. Accordingly, the said decision does not lay down any principle to be binding on me. 7. Learned counsel appearing on behalf of appellants has relied upon a decision of the Supreme Court in the case of Mrs. Helen C. Rebello and Ors. V/s. Maharashtra State Road Transport Corporation and Anr. reported in - . Accordingly, the said decision does not lay down any principle to be binding on me. 7. Learned counsel appearing on behalf of appellants has relied upon a decision of the Supreme Court in the case of Mrs. Helen C. Rebello and Ors. V/s. Maharashtra State Road Transport Corporation and Anr. reported in - . In this case principle has been laid down that "pecuniary advantage received by claimant to be deductible should have correlation with accidental death, and no other form of death." I would like to quote the relevant paragraph of this judgment which completely answers the question under consideration which is as follows : 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 Motor Vehicles Act, 1939. It is very clear, to which there could be no doubt that Motor Vehicle 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 Vehicle 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 motor vehicle, would not be covered under the Motor Vehicles Act, Thus, the application of general principle under the common law of loss and gain for the computation of compensation under this Act must co-relate to this type of injury or deaths, 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 movable, 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 meagre liability. Therefore, 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 form of death. The receipt of the provident fund 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. 8. I, therefore, find that the Court below was not right in deducting the amount of family pension while calculating the actual loss of dependency. Here I may add that before the Tribunal son of deceased Bharat Singh admitted that farhily of Bharat Singh was getting Rs. No correlation between the two. 8. I, therefore, find that the Court below was not right in deducting the amount of family pension while calculating the actual loss of dependency. Here I may add that before the Tribunal son of deceased Bharat Singh admitted that farhily of Bharat Singh was getting Rs. 6300.00 per month as famiiy pension but so far deceased Uday Chandra Pd. Singh is concerned, the Tribunal in its judgment has stated that there is no definite evidence regarding amount of family pension being paid to his dependents but in spite of it the Tribunal has calculated a sum of Rs. 3800.00 per month as family pension for the dependents of late Uday Chandra Pd. Singh on a general principle and it has deducted this amount from the amount of monthly income of deceased Uday Chandra Pd. Singh. In absence of any material on record that any amount was being paid to the dependents of late Uday Chandra Pd. Singh, the Court was not right in deducting certain amount fixed by it as family pension per month to the dependents of late Uday Chandra Pd. Singh. In any view of the matter, the order of the Court below deducting the family pension from the monthly income of both the deceased while calculating the actual loss of dependency cannot be upheld. 9. Admittedly, there is no dispute on the point that at the time of death of deceased Bharat Singh his monthly income was Rs. 13053.00 . At the time of death he was aged about 46 years. Since the accident is said to have taken place on 7.3.1999 provisions of MV Act, 1988 are applicable to the facts of.the present case. 10. According to sec. 163-A of the MV Act, 1988, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. 11. As stated above, monthly income of deceased Bharat Singh was Rs. 13053A and after 1/3rd of this amount is reduced for his personal expenses which he would have incurred towards maintenance of himself, the balance comes to Rs. 8702.00 . The annual dependency comes to Rs. 8702 x 12 = Rs. 11. As stated above, monthly income of deceased Bharat Singh was Rs. 13053A and after 1/3rd of this amount is reduced for his personal expenses which he would have incurred towards maintenance of himself, the balance comes to Rs. 8702.00 . The annual dependency comes to Rs. 8702 x 12 = Rs. 1.04.424.00 . Since the age of deceased Bharat Singh at the time of accident was 46 years, the multiplier as per Second Schedule of MV Act, 1988 is 13. Multiplying the annual dependency with this multiplier the amount comes to Rs. 1,04,424 x 13 = Rs. 13,57,512.00 . By adding a sum of Rs. 2000.00 as funeral expenses a sum of Rs. 5000.00 as loss of consortium and a sum of Rs. 2500.00 as loss of estate, the total amount comes to Rs. 13,67,012.00 . The Court below has awarded interest at the rate of 12 per cent which, in my opinion is sufficient. 12. Similarly, the monthly income of late Uday Chandra Prasad Singh was Rs. 8444.00 and after deducting 1/3rd of this amount, the balance comes to Rs. 2814.67. The annual dependency therefore, will be Rs. 2814.67 x 12 = Rs. 33,776.00 after rounding of. Since at the time of death his age was 55 years, the multiplier in his case would be 11. Multiplying the annual dependency with this multiplier the amount comes to Rs. 3,71,536.00 . By adding a sum of Rs. 2000.00 as funeral expenses, a sum of Rs. 5,0007- as loss of consortium and a sum of Rs. 25007- as loss of estate, the total amount comes to Rs. 3,81,036.00 . 13. In the result, both these appeals are allowed. The compensation for the death of deceased Bharat Singh is fixed at Rs. 13,67,0127- and for the death of deceased Uday Chandra Pd. Singh Rs. 3,81,036.00 . In both the cases interest at the rate of 12% per annum from the date of filing of the claim till the date of recovery is allowed. Respondent No. 3 is directed to pay the amount of aforesaid compensation with interest after deducting the amount already paid to appellants as interim compensation or any amount after passing the award by the Tribunal within two months from today failing which the appellants will be entitled to recover the amount through process of law. 14. There will be no order as to cost.