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Uttarakhand High Court · body

2007 DIGILAW 38 (UTT)

Bhagwanti Bai and others v. Shiv Kumar Gupta

2007-02-15

RAJESH TANDON

body2007
Judgment Heard Sri Rajesh Joshi holding the brief of Sri T.A. Khan, counsel for the appellants. 2. Present appeal has been filed against the award dated 25-04-1988 passed by the Motor Accident Claims Tribunal in Claim Case NO.9 of 1987. 3. A perusal of the record shows that a sum of Rs. 26,0001- has been awarded towards the claim/compensation against the defendants in the Motor Accident Claims Case. 4. Briefly stated Sri Jagannath Singh was coming back from Badrinathji after Darshan in Bus No. U.R.X. 2791 in the morning of 31st January, 1986, the Bus slipped into a Gorge at about 12 a.m. near Hanuman Chatti due to the negligence of the driver and Mr. Jagannath Singh along with others succumbed to injuries sustained by them. 5. Smt. Bhagwati Devi, widow of the deceased and four sons have claimed Rs. 87,000/- towards compensation from the Bus owner and New India Assurance Company with whom the Bus was insured. 6. Smt. Kasturibai A.W.1 was examined on oath who has stated on oath that she was sitting on the seat behind the driver and the passengers have conveyed to the driver that speed should be moderate. 7. On the basis of the aforesaid evidence, the Tribunal has come to the conclusion that the accident was caused due to negligence of the driver. The tribunal while awarding the claim of Rs. 26,000/- has taken into consideration that the claimant has already received from the State Administration a sum of Rs. 14,000/- ex gratia amount and as such the same was deducted from the compensation awarded to the claimants. 8. A perusal of the record shows that the liability of the Insurance Company has nothing to do with the ex gratia amount granted by the State Administration. 9. In Helen C. Rebello & others v. Maharashtra State Road Transport Corporation and another reported in 1999 ACJ Page 10, the principles havebeen laid down that the amount received from other sources can not be deducted from the amount payable under the Motor Vehicles Act as the liability of the Insurance policy being contractual no deduction can be made. The findings are quoted below :"The amount under this Act he receives without any contribution. As we have said the compensation payable under the Motor Vehicle Act is statutory while the amount receivable under the life insurance policy is contractual. " 11. The findings are quoted below :"The amount under this Act he receives without any contribution. As we have said the compensation payable under the Motor Vehicle Act is statutory while the amount receivable under the life insurance policy is contractual. " 11. It is well known maxim 'pacta sunt servanda' referred to in the Vidya v. L.I. C. of India 2005 (28) Page 421 means "contracts are to be kept." 12. It has also been held in United India Insurance Co. Ltd. and others v. Patricia Jean Mahajan and others (2002) 6 SCC Page 281 following the judgment of Helen C. Rebello v. Maharashtra SRTC, (1999) 1 SCC 90 that the principles of balancing between losses and gains, by reason of death, arrive at the amount of compensation, is a general rule and therefore, amount being social security, the same having been received from other sources cannot be deducted. The Apex Court in the case of Helen C. Rebello v. Maharashtra State Road Transport Corporation (supra) has observed as under: "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 amount is received either by 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 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 insured's death. Again. this amount is receivable by the claimant not on account of any accidental death but otherwise on 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 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 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 has no correlation 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 though contribution 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." 13. The Claims Tribunal has awarded a total sum of Rs. 40,000/- to the claimants, however, a sum of Rs. 14,000/- has been deducted from the total amount of award as ex gratia compensation granted to the claimants by the State Administration. The ex gratia payment cannot be deducted from the amount of award. Thus the amount awarded by the claims tribunal is modified to the extent of 40,000/- 14. In view of the above, the claimants are entitled to get Rs. 40,000/- as compensation along with interest @ 7% per annum. 15. Accordingly, the appeal is allowed. No order as to costs.