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2009 DIGILAW 673 (CAL)

Madhumita Sarkar v. Oriental Insurance Com. Ltd.

2009-08-27

BHASKAR BHATTACHARYA, PRASENJIT MANDAL

body2009
Judgment : BHASKAR BHATTACHARYA, J. (1) This appeal is at the instance of claimants in a proceeding under Section 166 of the Motor Vehicles Act and is directed against an award dated 5th March, 2005 passed by the Motor Accident Claims Tribunal and the Additional District Judge, First Court, West Midnapur, in M.A.C. Case No.967 of 2003 thereby disposing of the said proceeding by awarding a sum of Rs.5,09,500/-as compensation in spite of his specific finding that the appellants were entitled to get Rs.20,00,000/-as compensation. The reason for reducing the amount is that the business of the victim, at present, after his death, continues to be run by his wife, appellant No.1, after the licence of the Petrol Pump run by the victim has been transferred to the appellant No.1. The Tribunal held that for the aforesaid reason, the claimant should only be entitled to get twenty-five percent of such dependency-loss. (2) Being dissatisfied, the claimants have come up with the present appeal. None appears on behalf of the Insurance Company in spite of service of notice of appeal. (3) The only point raised by Mr. Mandal, the learned advocate appearing on behalf of the appellants, in this appeal is that the learned Tribunal below erred in law in reducing the assessed amount to twenty-five percent of the same simply because the widow of the victim is now running the business of the victim after the licence has been transferred in her name. Mr. Mandal submits that the fact that the widow is running the business by her own skill and labour is not a ground for reduction of the just amount of compensation payable for the death of the victim for the rash and negligent driving of the driver of the offending vehicle. Therefore, the only question that arises for determination in this appeal is whether the learned Tribunal below was justified in reducing the assessed amount to twenty-five percent of the same after taking into consideration the fact that similar business is now being run by the widow of the victim. Before proceeding to answer the said question, we keep on record that the victim, aged 42 years, used to run a business of Petrol Pump in the name of Gitanjali Filling Station on the basis of licence granted by Hindustan Petroleum Co. Before proceeding to answer the said question, we keep on record that the victim, aged 42 years, used to run a business of Petrol Pump in the name of Gitanjali Filling Station on the basis of licence granted by Hindustan Petroleum Co. Ltd. From that business, his annual income varied between Rs.2,23,936/- and Rs.1,87,719/-as it appears from the Income Tax return submitted by the victim for the assessment years 2000-2001 and 2001-2002 and those were marked as Ext.4 and 4B respectively. After the death of the victim, the said licence has been transferred to the name of the widow of the victim and at present, she has been running the said business. Apart from the widow, the deceased has left two minor daughters. (4) At this stage, it will not be out of place to refer to the decision of the Supreme Court in the case of Helen C Rebello and others vs. Maharashtra State Road Transport Corporation and another reported in AIR 1998 SC 3191 where the question was whether in adjudicating the amount of just compensation within the meaning of the Motor Vehicles Act, 1939, the Tribunal was justified in deducting the amount of money received by maturity of the Life Insurance of the deceased. While answering the question in negative, the Apex Court made the following observations: (5) 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 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, co-relating with the accidental death. 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, co-relating 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 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. 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 form of 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 constitution of the Motor Accidents Claims Tribunal itself under Section 110, is as the Section states; "....for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to,....." (6) Thus, it would not include that which claimant receives on account of other form of deaths, which he would have received even apart from accidental death. Thus, such pecuniary advantage would have no corelation to the accidental death for which compensation is computed. Any amount received or receivable not only on account of the accidental death but that 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 incidence 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, in the course of employment of an employee. (7) 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 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., 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 ones labour or contribution towards ones wealth, savings, etc. How thus an amount earned out of ones labour or contribution towards ones 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 ones 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 co-relation between the two amounts. Not even remotely. How can an amount of loss and gain of one contract could be made applicable to the loss and gain of another contract. Similarly, how an amount receivable under a statute has any co-relation with an amount earned by an individual. Principle of loss and gain has to be on the same place within the same sphere, of course, subject to the contract to the contrary or any provisions of law. (8) 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 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 contracts for the premium paid. 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 contracts for the premium paid. Again, this amount is receivable by the claimant not on account of any accidental death but otherwise on insureds 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 ones 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. 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. (Emphasis supplied by us). 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. (Emphasis supplied by us). (9) Thus, if the amount received on maturity of a life insurance policy of the victim (other than benefit of accidental death) or the amount of provident fund or the amount of family pension, or the fixed assets coming into the hands of the heirs are not relevant for the purpose of assessing just compensation, there is no reason why the income of the widow arising out of business run by her alone based on her labour and skill from the business of running of a Petrol Pump inherited by her from the victim should be deducted for assessing the just amount of compensation. If her husband was alive, she could invest her labour and skill for doing other business or any other profitable job and could earn equal or even more amount than what she is now earning from the business of the running the petrol pump. (10) At this stage we may refer to a Division Bench decision of this Court in the case of Sharmila Singh and others vs. Robin Ghosh and others reported in 2008(3) WBLR 851 (HC) where in a similar situation like the present one, a widow maintained the same amount of income from the business of transport inherited by her from her husband. In such a situation, the Division Bench made the following observations: (11) Undisputedly, the victim, at the time of death, had income only from the transport business of letting out his vehicle to a company and after his death, his heirs have surrendered their interest in the said vehicle in favour of one of them, i.e. the widow, and she is earning, virtually, the same amount from the said business. In other words, the widow of the victim has undertaken the said business alone after the interest inherited by the other heirs has been surrendered in her favour. In other words, the widow of the victim has undertaken the said business alone after the interest inherited by the other heirs has been surrendered in her favour. It is well known that in this type of a business, the owner is required to keep the vehicle in a good condition during the period of hire and make arrangement of supply of a driver; in case of breakdown of the vehicle, the owner should make alternative arrangement for supply of a different vehicle. In case of accident and consequential loss, the owner is required to make payment of compensation. After deduction of the necessary expenses mentioned above, the owner should also pay the required amount of tax and insurance premium. A part of the net earning arising out of the vehicle should be kept apart and invested in a suitable venture so that within a few years, sufficient amount is accumulated for replacement of the old vehicle. In other words, the owner is required to devote his fulltime in the business for earning the net income arising out of the vehicle. Therefore, the present amount of earning from the said business is the outcome of the fulltime attachment of the widow of the victim. By devoting such time and energy, she could also earn similar amount or even more, from other means either by service or by engaging herself in a different business. If her husband was alive, she could earn additional amount by giving similar amount of labour in other business or service. (12) Applying the aforesaid principles to the facts of the present case, we hold that the Tribunal itself having found that but for the renewal of the licence of the business of the Petrol pump in favour of the widow of the victim, it was a fit case of grant of Rs.20 lakh as compensation to the claimants, we find no reason to reduce the same to one-fourth of the said amount simply because the widow is now running the said business by her own labour and skill. We cannot lose sight of the fact that the case was under Section 166 of the Act where the rash and negligent driving of the driver of the errant vehicle insured by the Insurance Company has been established from the record and the widow and the two daughters lost the victim aged 42 years having a flourishing business with further future prospect. In such circumstances, there was no justification of reducing the just compensation assessed to one-fourth only on the ground that the widow is at present running the business when such fact is insignificant as pointed out by the Supreme Court in the case of Helen C Rebello (supra). The fact that one of the heirs of the victim has good income and is sufficient to maintain the other heirs is no ground for reducing the compensation as it is well settled that in order to claim compensation it is not necessary that the claimant should be financially dependent upon the victim. Moreover, the interest of the two minor daughters has also been seriously prejudiced by the award impugned. We, thus, enhance the amount of compensation to Rs. 20 lakh with interest at the rate of 8% per annum from the date of application till the actual deposit of the amount. It is needless to mention that the running of the interest on the amount already deposited by the Insurance Company will stop running from the date of deposit of such amount. The Insurance Company is directed to deposit the balance amount within one month from today before the learned Tribunal below by issuing three different cheques in the name of the appellant Nos.1 to 3 by dividing the additional amount equally among them. The cheques in the name of the minors, the appellant Nos.2 and 3, shall be kept in a fixed deposit in any nationalised bank so long they do not attain majority. The appellant No.4, the father of the victim being not an heir of the victim is not entitled to any additional amount awarded by this order. The award impugned is, thus, modified to the extent indicated above. The appeal is, thus, allowed. In the facts and circumstances, there will be, however, no order as to costs.