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2009 DIGILAW 497 (CAL)

Papa Biswas v. United India Insurance Co. Ltd

2009-07-10

B.Bhattacharya, Prasenjit Mandal

body2009
JUDGMENT Bhaskar Bhattacharya, J. 1. THIS appeal is at the instance of the claimants in a proceeding under section 166 of the Motor Vehicles Act, 1988 and is directed against an award dated 30/4/2002 passed by the Motor Accidents Claims Tribunal and the Tenth Court of Additional District Judge, Alipore in M.A.C. Case No. 477 of 2000 thereby disposing of the said proceeding by awarding a sum of Rs. 4,36,188 out of which Rs. 50,000.00 had already been received by the claimants in an earlier proceeding under section 140 of the Act. The insurance company was, therefore, directed to pay a sum of Rs. 3,86,188 within a month from the date of passing of the award with further condition that in default of such payment within the said period, the award should carry interest at the rate of 10 per cent per annum till realization. The insurance company was directed to pay the said amount by issuing account payee cheques in the names of the petitioners in equal proportion. 2. BEING dissatisfied, the claimants have come up with the present appeal. There is no dispute that the victim was a traffic constable and was run over by a vehicle insured by United India Insurance Co. Ltd. At the time of accident, the victim used to earn gross salary of Rs. 6,144 out of which the basic salary was Rs. 4,380 and D.A. was Rs. 1,664 and the balance Rs. 100 was payable as medical allowance. 3. THE victim was aged 41 years at the time of death and he had then 19 years of service left before the normal date of retirement. 4. THE learned trial Judge on consideration of the materials on record came to the conclusion that due to rash and negligent driving on the part of the driver of the offending vehicle the accident occurred resulting in the death of the victim. It was further found that the said vehicle was covered by the insurance of the concerned insurance company. While calculating the amount of compensation, in such a situation, learned Tribunal below took into consideration only the basic salary of Rs. 4,380 as the income of the victim and on that basis, he fixed the annual income as Rs. 52,560. It was further found that the said vehicle was covered by the insurance of the concerned insurance company. While calculating the amount of compensation, in such a situation, learned Tribunal below took into consideration only the basic salary of Rs. 4,380 as the income of the victim and on that basis, he fixed the annual income as Rs. 52,560. After arriving at such finding, the learned Tribunal below held that as for application of the Second Schedule to the Act under section 163-A, the victim should not have income of more than Rs. 40,000 per annum and its one-third should be deducted for personal expenses of the deceased had he been alive, the amount of Rs. 23,668 should be treated to be the multiplicand and the victim having died in the age group of 35- 40, the applicable multiplier should be 16 and thus, the total amount payable should be Rs. 4,26,688.00 plus Rs. 9,500.00 towards funeral expenses, loss to estate and loss of consortium and consequently, the total amount of compensation should be assessed at Rs. 4,36,188 in accordance with the Second Schedule to the Act. 5. AFTER hearing the learned counsel for the parties and after going through the aforesaid award, we are unable to approve the same as the same was grossly perverse. 6. THE learned Tribunal below totally overlooked the fact that the petition was not one under section 163-A of the Act but was one under section 166 of the Motor Vehicles Act and the claimants had proved negligence of the driver of the offending vehicle which was not necessary to be proved in the proceedings under section 163-A of the Act. In such circumstances, there was no justification of applying the Second Schedule after reducing the actual income of the victim to Rs. 40,000 per annum. As the proceeding was under section 166 of the Act and the claimants had proved negligence on the part of driver of the vehicle the compensation should be fixed on the basis of actual gross income of the victim which was Rs. 6,044 a month being not taxable under the Income Tax Act. We have already pointed out that the victim had 19 years of service still left and he was in a stable service in Government of West Bengal. 6,044 a month being not taxable under the Income Tax Act. We have already pointed out that the victim had 19 years of service still left and he was in a stable service in Government of West Bengal. In such circumstances, in our view, the appropriate multiplier should be 16 on the basis of annual income of Rs. 72,000.00. After deducting one-third there from as personal expenses of the victim, the total amount of compensation should come to Rs. 7,68,000.00. Claimants should, in our view, also be entitled to get interest at the rate of 8 per cent per annum from the date of filing of the application till actual deposit of the amount. 7. MR. Sanjoy Paul, learned advocate appearing on behalf of the insurance company, however, vehemently opposed our approach to the aforesaid assessment by contending that as the widow of the victim was entitled to get family pension on the death of the victim, this court while awarding the amount of compensation, should have deducted the amount of family pension payable by the employer. In support of such contention, MR. Paul relies upon the decision of the Supreme Court in the case of Bhakra Beas Management Board v. Kanta Aggarwal, 2008 ACJ 2372 (SC) and also upon the decision of the Supreme Court in the case of Gobald Motor Service Ltd. v. R.M.K. Veluswami, 1958-65 ACJ 179 (SC). 8. IN the case of Bhakra Beas Management Board, 2008 ACJ 2372 (SC), a claim petition was filed by the widow and the children of the victim under section 166 of the Motor Vehicles Act, 1988. The Tribunal awarded compensation of Rs. 8,48,160 along with interest at the rate of 9 per cent per annum from the date of institution of the proceedings. An appeal was filed by the owner of the vehicle before the High Court. It was pointed out that on the death of K.C. Aggarwal, the respondent No. 1, the widow of the victim, had been provided with compassionate appointment and she was getting salary of nearly Rs. 4,700 p.m. (basic pay of nearly Rs. 4,700) and a residence was provided to her. The High Court did not accept this plea and observed that the quantum of compensation had been rightly fixed. Being dissatisfied, the owner of the vehicle moved the Apex Court. 4,700 p.m. (basic pay of nearly Rs. 4,700) and a residence was provided to her. The High Court did not accept this plea and observed that the quantum of compensation had been rightly fixed. Being dissatisfied, the owner of the vehicle moved the Apex Court. IN such a situation, a two-Judge Bench of the Apex Court was of the view having regard to the fact that the widow was given compassionate appointment by the employer, the just amount of compensation should be limited to Rs. 5,00,000. It appears from the materials on record that the victim was a passenger of a jeep owned by appellant and at the time of accident he sat just behind the driver of the jeep. Due to rash and negligent driving of the driver of the jeep the same collided with a truck resulting in the death of the victim. The truck sped away and the claim application was filed against the owner of the jeep. Although it is not clear from the judgment, most probably the victim was an employee of the owner of the jeep, the appellant before the Apex Court, as would appear from the fact that he was a passenger of the jeep and the insurance company was not involved in the litigation. Therefore, the compensation was claimed against the owner of the jeep, the employer of the victim, who provided the widow of the victim with compassionate appointment. The Apex Court although took note of the decision in the case of Helen C. Rebello v. Maharashtra State Road Trans. Corpn., 1999 ACJ 10 (SC), did not make any observations and ultimately, reduced the amount to Rs. 5,00,000 on the ground that the fact of providing compassionate appointment should have been taken into consideration by the High Court. In the case before us, we are not concerned with the case of compassionate appointment but the question before us is whether the fact that the widow is getting family pension from the employer of the husband is a fact which will be relevant. 9. In the case before us, we are not concerned with the case of compassionate appointment but the question before us is whether the fact that the widow is getting family pension from the employer of the husband is a fact which will be relevant. 9. THE said question has been answered by the Apex Court in the case of Helen C. Rebello, 1999 ACJ 10 (SC), itself at para 36 which will appear from the following observations: "(36) 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 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 co-relation 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 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. 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 co- relation 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 co- relation 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 co-relation. THE insured (deceased) contributes his own money for which he receives the amount has no co-relation to the compensation computed as against tortfeasor for his negligence on account of 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 fruits of an amount received through contributions of the insured be deducted out of the amount receivable under the Motor Vehicles Act. 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." (Emphasis supplied) 10. WE, thus, find that the case of Bhakra Beas Management Board (supra), has no application to the facts of the present case and is not a binding precedent so far as the question of considering the fact of receiving the family pension as a relevant factor for reducing the compensation is concerned. Similarly, the case of Gobald Motor Service Ltd. (supra) relied upon by Mr. Paul was taken note of in the case of Helen C. Rebello, 1999 ACJ 10 (SC), as would appear from the following observations: "We have already referred to above the section 1A of the Fatal Accidents Act, 1855 and section 110-B of the Motor Vehicles Act, 1939 under which compensation is payable to the claimant. Section 1 of 1855 Act was renumbered as section 1A through the Amending Act 3 of 1951. We find that the language of section 110-B of the 1939 enactment is different than what is under section 1A of the 1855 Act. Section 1 of 1855 Act was renumbered as section 1A through the Amending Act 3 of 1951. We find that the language of section 110-B of the 1939 enactment is different than what is under section 1A of the 1855 Act. Section 1A of 1855 Act provides that whenever death occurs on account of wrongful act or neglect, entitles the party injured to maintain a suit to recover damages from the party, who caused the injury or the death. This entitles the party to recover damages, whenever the death is occasioned by the wrongful act, negligence or default, which would have entitled the party injured (if death had not resulted) to maintain an action to recover damages in respect thereof. This provision was interpreted within the limitation of the words used therein and in the absence of any guiding words therein. The courts rightly drew the general principle of common law of loss and gain. But section 110-B of 1939 Act empowers the Tribunal to determine the compensation which appears to it to be just. The words used in section 110-B are: 'which appears to it to be just'. Use of these words, widen the scope of determination of compensation which is neither under the Indian Fatal Accidents Act, 1855 nor under the English Fatal Accidents Act, 1846. So far, as observed above, apart from the conflicting decisions of the Indian High Courts, no decision has been placed before us of this court, determining any principle of deductibility of any amount, like, life insurance, gratuity, pension, etc., from the amount payable under the Motor Vehicles Act. In Sheikhupura Transport Co. Ltd. v. Northern India Transporters' Ins. Co. Ltd., 1971 ACJ 206 (SC), this court did consider the case of compensation under section 110-B of the Motor Vehicles Act, 1939 and did refer to the decision in Gobald Motor Service Ltd., 1958-65 ACJ 179 (SC), in case the compensation is to be computed under 1855 Act. This inference was drawn by assuming if 1855 Act is applicable, however, it further holds that language used in the 1939 Act, is wider. This apart, again in this case neither any question was raised nor facts were pleaded and adjudicated regarding the deduction of life insurance, gratuity, pension, etc. This inference was drawn by assuming if 1855 Act is applicable, however, it further holds that language used in the 1939 Act, is wider. This apart, again in this case neither any question was raised nor facts were pleaded and adjudicated regarding the deduction of life insurance, gratuity, pension, etc. The relevant portion is quoted herein under: 'Under section 110-B of the Motor Vehicles Act, 1939 the Tribunal is required to fix such compensation which appears to it to be just. The power given to the Tribunal in the matter of fixing compensation under that provisions is wide. Even if we assume (we do not propose to decide that question in this case) that compensation under that provision has to be fixed on the same basis as is required to be done under Fa tal Accidents Act, 1855 (Act 13 of 1855), the pecuniary loss to the aggrieved party would depend upon data which cannot be ascertained accurately but must necessarily be an estimate or even partly a conjecture. The general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever sources come to them by reason of the death, that is, the balance of loss and gain to a dependent by the death must be ascertained. [See Gobald Motor Service Ltd. v. R.M.K. Veluswami, 1958-65 ACJ 179 (SC)].' This court, in this case did observe, though did not decide, to which we refer that the user of the words, 'which appears to it to be just' under section 110-B gives wider power to the Tribunal in the matter of determination of compensation under 1939 Act. There is another case of this court in which there is a passing reference to the deduction out of the compensation amount payable under the Motor Vehicles Act. In N. Sivammal v. Managing Director, Pandian Roadways Corporation, 1985 ACJ 75 (SC), this court held that Rs. 10,000 receivable as monetary benefit to the widow of the pension amount, the deduction of which is not qualified. So, though deduction of widow's pension was not accepted but for this, no principle has been discussed therein. In N. Sivammal v. Managing Director, Pandian Roadways Corporation, 1985 ACJ 75 (SC), this court held that Rs. 10,000 receivable as monetary benefit to the widow of the pension amount, the deduction of which is not qualified. So, though deduction of widow's pension was not accepted but for this, no principle has been discussed therein. However, having given our full consideration, we find there is deliberate change in the language in the later Act, revealing the intent of the legislature, viz., to confer wider discretion to the Tribunal which is not to be found in the earlier Act. Thus, any decision based on the principle applicable to the earlier Act, would not be applicable while adjudicating the compensation payable to the claimant in the later Act" (Emphasis supplied) 11. WE, thus, find that the case of Gobald Motor Service Ltd. (supra) does not help Mr. Paul's client in any way in the facts of the present case. 12. WE, therefore, hold that in this case, Claims Tribunal ought to have applied the multiplier of 16 on the annual income of Rs. 72,000.00 after deducting one-third for the personal expenses for the victim and thus, arrived at the figure of Rs. 7,68,000.00 out of which Rs. 50,000 have already been paid in the earlier proceedings under section 140 of the Act. Therefore, the insurance company should pay the balance amount of Rs. 7,18,000.00 in this proceeding under section 166 of the Act. The amount should carry interest at the rate of 8 per cent per annum from the date of filing of the application till actual deposit of the amount. The insurance company is directed to pay the balance amount as modified by us within one month from today. The running of interest on the amount already deposited by the insurance company will stop from the date of deposit of the amount pursuant to the award impugned. The award impugned is, thus, modified to the extent indicated above. In the facts and circumstances, there will be, however, no order as to costs. Appeal disposed of.