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Uttarakhand High Court · body

2007 DIGILAW 52 (UTT)

Smt. Sushila and others v. Mustfa

2007-02-20

J.C.S.RAWAT, RAJEEV GUPTA

body2007
Judgment Rajeev Gupta, C.J. This is claimants' appeal for enhancement of the compensation awarded by Motor Accident Claims Tribunal I Addl. District Judge, Roorkee vide Award dated 02-08-2003 passed in MAC.T. No. 54 of 1998. 2. The claimants, who are unfortunate widow and minor children of deceased Atar Singh, claimed compensation of Rs. 39,25,000/- for his death in the motor accident on 01-031998 when his Scooter bearing registration No. UP-10C-1957 was dashed by the offending vehicle Tractor bearing registration No. UP-1 OB-5924 resulting in multiple serious injuries to Atar Singh, who succumbed to those injuries on his way to the hospital. The claimants pleaded that deceased Atar Singh was getting salary of Rs. 9,672.47/- as Cashier in Indian Overseas Bank. 3. The owner and driver of the Tractor; the insurer of the Tractor; and the insurer of the Scooter contested the claim and denied their liability to pay compensation to the claimants. The insurer of the Tractor took the plea that the Tractor was being plied in breach of the policy conditions and the Scooterist, himself; was responsible for the accident, whereas the insurer of the Scooter pleaded that the driver of the Tractor, alone, was responsible for the accident. 4. The claimants examined PW1 Sushila, PW2 Palla and PW3 Sannu in support of their claim, whereas the owner of the Tractor examined DW 1 Murtza in rebuttal. 5. The Tribunal, on a close scrutiny of the evidence led by the parties, held that Atar Singh died on account of the injuries sustained by him in the motor accident on 01-03-1998 the accident occurred due to the rash and negligent driving of the driver of the offending vehicle Tractor; and the insurer of the Tractor was liable to pay compensation to the claimants. 6. The Tribunal assessed the income of the deceased at Rs. 10,000/- per month and Rs. 1,20,000/- per annum. After deducting 1 /3rd of the said amount as the personal expenses of the deceased, the claimants' dependency was assessed at Rs. 80,000/- per annum. By multiplying the annual dependency of Rs. 80,000/- with the multiplier of '15', the compensation was assessed at Rs. 12,00,000/-. The Tribunal by taking into account the amount of family pension of Rs. 4,800/-, being received by the family of the deceased every month, reduced the compensation payable to the claimants to Rs. 3,36,000/-. By awarding further sums of Rs. By multiplying the annual dependency of Rs. 80,000/- with the multiplier of '15', the compensation was assessed at Rs. 12,00,000/-. The Tribunal by taking into account the amount of family pension of Rs. 4,800/-, being received by the family of the deceased every month, reduced the compensation payable to the claimants to Rs. 3,36,000/-. By awarding further sums of Rs. 90,000/- towards Loss of Future Prospects and Rs. 10,000/- towards Loss of Consortium; Funeral Expenses; and Loss of Estate, a total sum of Rs. 4,36,000/- was awarded as compensation to the claimants for the death of Atar Singh in the motor accident on 01-031998. The Tribunal, further, directed the insurer of the Tractor to pay interest at the rate of 9% per annum in the event of its failure to pay the amount of compensation to the claimants within a period of one month from the date of the Award. 7. Mr. Nagesh Agarwal, the learned counsel for the appellants submitted that the Tribunal has erred in awarding low compensation of Rs. 4,36,000/- only and in not awarding any interest on the amount of compensation and in directing only a conditional payment of interest in the event of the insurer's failure to pay the compensation to the claimants within a period of one month from the date of the Award. 8. Mr. M.K. Goyal, the learned counsel for the insurer of the Tractor, on the other hand, contended that the Tribunal has erred in holding the driver of the Tractor solely responsible for the accident, whereas the deceased, himself, also contributed to the accident. The learned counsel further submitted that the Tribunal has been quite liberal in awarding substantial compensation of Rs. 4,36,000/- to the claimants and no enhancement of the compensation is warranted in this appeal. 9. The learned counsel for the owner and driver of the Tractor and the insurer of the Scooter supported the Award. 10. The findings recorded by the Tribunal that deceased Atar Singh died on account of the injuries sustained by him in the motor accident on 01-03-1998; the accident occurred due to the rash and negligent driving of the driver of the offending vehicle Tractor; and the insurer of the Tractor was liable to pay compensation to the claimants have, now, attained finality as the respondents have not filed any appeal against the Award. 11. 11. The Tribunal has fallen into error in reducing the amount of compensation by taking into account the amount of family pension received by the claimants. The Apex Court, while considering the permissibility of such deductions in the case of Helen C. Rebello (Mrs.) and others Vs. Maharashtra State Road Transport Corporation and another reported in (1999) 1 Supreme Court Cases 90, observed in paras 35 and 36 : "35. 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 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. 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. 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 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 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 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. 36. As we have observed, the whole scheme of the Act, in relation to the payment of compensation to the claimant, is a beneficial legislation. The intention of the legislature is made more clear by the change of language from what was in the Fatal Accidents Act, 1855 and what is brought under Section 110-B of the 1939 Act. This is also visible through the provision of Section 168( 1) under the Motor Vehicles Act, 1988 and Section 92-A of the 1939 Act which fixes the liability on the owner of the vehicle even on no fault. It provides that where the death or permanent disablement of any person has resulted from an accident in spite of no fault of the owner of the vehicle, an amount of compensation fixed there in is payable to the claimant by such owner of the vehicle. Section 92-B ensures that the claim for compensation under Section 92-A is in addition to any other right to claim compensation in respect whereof (sic thereof) under any other provision of this Act or of any other law for the time being in force. Section 92-B ensures that the claim for compensation under Section 92-A is in addition to any other right to claim compensation in respect whereof (sic thereof) under any other provision of this Act or of any other law for the time being in force. This clearly indicates the intention of the legislature which is conferring larger benefit on the claimant. Interpretation of such beneficial legislation is also well settled. Whenever there be two possible interpretations in such statute, then the one which subserves the object of legislation, viz., benefit to the subject should be accepted. In the present case, two interpretations have been given of this statute, evidenced by two distinct sets of decisions of the various High Courts. We have no hesitation to conclude that the set of decisions, which applied the principle of no deduction of the life insurance amount, should be accepted and the other set, which interpreted to deduct, is to be rejected. For all these considerations, we have no hesitation to hold that such High Courts were wrong in deducting tt1e amount paid or payable under the life insurance by giving a restricted meaning to the provisions of the Motor Vehicles Act basing mostly on the language of English statutes and not taking into consideration the changed language and intents of the legislature under various provisions of the Motor Vehicles Act, 1939." 12. As the computation of compensation by the Tribunal suffers from serious infirmities, we purpose to re-compute the entire compensation. 13. PW 1 Smt. Sushila (widow of deceased Atar Singh) has deposed that her husband used to get salary of Rs. 10,000/- per month. The salary certificate produced by the claimants before the Tribunal reveals that the deceased was getting Gross Salary of Rs. 9,672.47/- per month. The break-up of his salary, as disclosed in the salary certificate, is as follows :_ 1. Basic Pay = Rs. 5500.00 2. Dearness Allowance = Rs. 3134.34 3. House Rent Allowance = Rs. 508.29 4. Special Allowance = Rs. 420.00 5. Head Cashier Allowance = Rs. 109.84 TOTAL = Rs. 9672.47 14. In view of the dictum of the Apex Court in the case of Asha and others Vs. United India Insurance Co. Ltd. and another reported in 2004 ACJ 448, for the purposes of assessment of the compensation, the Basic Salary and Dearness Allowance, alone, are to be taken into consideration. 109.84 TOTAL = Rs. 9672.47 14. In view of the dictum of the Apex Court in the case of Asha and others Vs. United India Insurance Co. Ltd. and another reported in 2004 ACJ 448, for the purposes of assessment of the compensation, the Basic Salary and Dearness Allowance, alone, are to be taken into consideration. The total of Basic Pay and Dearness Allowance comes to Rs. 8,634.34/- (Rs. 5500 + Rs. 3134.34). The amount, when roundedoff, comes to Rs. 8,5001- per month and Rs. 1,02,0001- per annum. We, therefore, propose to compute the compensation taking the income of the deceased at Rs. 8,5001- per month and Rs. 1,02,0001- per annum. By deducting 1/3rd of Rs. 1,02,000/- as the personal expenses of the deceased, the claimants' annual dependency is assessed at Rs. 68,000/-. 15. Deceased Atar Singh was aged about 45 years on the date of the accident. His widow claimant NO.1 Smt. Sushila was also shown to be aged about 45 years in the claim petition. 16. In a motor accident claim case, what is important is that the compensation to be awarded by the Tribunal 1 Court should be just and proper compensation in the facts and circumstances of the case. The Apex Court, while considering the selection of appropriate multiplier in the motor accident claim cases in the case of T.N. State Transport Corpn. Ltd. vs. S. Rajapriya and others reported in (2005) 6 Supreme Court Cases 236"observed in paras 8 to 1 0 & 17 : "8. The assessment of damages to compensate the dependents is beset with difficulties because from the nature of things, it has to take into account many imponderables e.g. the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income together. 9. 9. The manner of arriving at the damages is to ascertain the net income of the deceased available for the support of himself and his dependants, and to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, as regards both self-maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants. Then that should be capitalised by multiplying it by a figure representing the proper number of years' purchase. 10. Much of the calculation necessarily remains in the realm of hypothesis "and in that region arithmetic is a good servant but a bad master" since there are so often many imponderables. In every case "it is the overall picture that matters", and the court must try to assess as best as it can the loss suffered. 17. Considering the age of the deceased and the principles indicated above, the appropriate multiplier would be 12 and not 16 as adopted by the Tribunal and affirmed by the High Court. By applying multiplier 12, amount of compensation is fixed at Rs. 4,50,000 (in round figures)..............." 17. In the case of S. Rajapriya (supra), the age of the deceased was 38 years and he was receiving the salary of Rs. 56,208/- per annum, the Apex Court found the multiplier of '12'to be appropriate. In the case in hand, deceased Atar Singh was aged about 45 years and was getting annual salary of Rs. 1,02,000/- and the claimants' dependency has been assessed hereinabove at Rs. 68,000/-. Considering the above broad features in the context of the dictum of the Apex Court in the case of S. Rajapriya (supra), we are of the opinion that multiplier of '12' would be appropriate in the present case too. 18. By multiplying the annual dependency of Rs. 68,000/- with the multiplier of '12', the compensation works out to Rs. 8,16,000/-. The claimants are further entitled to Rs. 5,000/towards Funeral Expenses; Rs. 5,000/- for Loss of Consortium to the widow; and Rs. 5,000/- for Loss of Estate. Thus, the claimants become entitled to receive a total sum of Rs. 8,31,000/- as compensation for the death of deceased Atar Singh in the motor accident on 01-03-1998. 19. The Tribunal has fallen into error in not awarding any interest to the claimants on the amount of compensation. 5,000/- for Loss of Estate. Thus, the claimants become entitled to receive a total sum of Rs. 8,31,000/- as compensation for the death of deceased Atar Singh in the motor accident on 01-03-1998. 19. The Tribunal has fallen into error in not awarding any interest to the claimants on the amount of compensation. By directing only a conditional payment of interest in the event of insurer's failure to pay the amount of compensation to the claimants within a period of one month from the date of the Award, the Tribunal has deprived the claimants of the amount of interest, which was otherwise payable to them. Considering the prevalent rate of interest in the Nationalised Banks, we award interest at the rate of 7% per annum from the date of the filing of the claim petition till the date of payment. 20. For the foregoing reasons, the appeal filed by the appellants under Section 173 of the Motor Vehicles Act for enhancement of the compensation is allowed in part. The compensation of Rs. 4,36,000/- awarded by the Tribunal is enhanced to Rs. 8,31 ,000/- (Rupees Eight Lakhs and Thirty One Thousand only). The claimants are further awarded interest on the above amount of compensation at the rate of 7% per annum from the date of the filing of the claim petition till the date of payment of the compensation. 21. No order as to costs.