Namita Mishra @ Misra v. New India Assurance Co. Ltd.
2012-03-16
ASHIM KUMAR BANERJEE, SHUKLA KABIR SINHA
body2012
DigiLaw.ai
JUDGMENT : Ashim Kumar Banerjee, Shukla Kabir (Sinha), JJ. This appeal relates to a grievance of the claimants with regard to inadequate compensation awarded by the Tribunal. The victim was a Central Government employee. He died at the age of 51 years in an accident. The Tribunal awarded a lump sum compensation of Rs. 3.5 lakhs less the amount received on account of no fault liability under Section 140 of the Motor Vehicles Act, 1988. However, in the order in portion different amount was written. We take it as a clerical and/or typographical mistake. 2. On perusal of the judgment we find that the Tribunal found favour with the argument of the Insurance Company that the widow was expecting to get Rs. 1 lakh out of the said accident. The Tribunal also considered the fact that the victims daughter would get compassionate appointment. Taking a sum total the amount was awarded as referred to above. 3. Mr. Krishanu Banik, learned Counsel appearing for the appellants contends that the compensation under the Motor Vehicles Act, 1988 was payable by the insurer of the vehicle, who indemnifies the owner as also the third party in case of eventuality of an accident causing injury and/or casualty to the victim. Mr. Banik relies on the Apex Court decision in the case of Helen C. Rebello v. Maharashtra S.R.T.C., reported in AIR 1998 SC 3191 . The relevant passages as relied upon by Mr. Banik is quoted below :- "37. 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. The 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 tortfeasor for his negligence on account of accident.
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 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. *** *** *** *** *** *** *** *** *** *** (38) In the present case, two interpretations have given of his 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 the amount paid or payable under the life insurance by giving restricted meaning to the provisions of the Motor Vehicles Act basing mostly on the language of English statutes and not making into consideration the changed language and intends of the legislature under various provisions of the Motor Vehicles Act, 1939." 4. Citing the aforesaid decision Mr. Banik contends that the learned Judge should not have taken into account the other eventualities like further compensation receivable from any other source or compassionate appointment as the case may be, while computing compensation under Section 166 of the said Act of 1988. 5. Mr. Banik also contends that the Tribunal should have applied the structured formula readily available under the said Act of 1988 and while doing so the Tribunal should have considered the age of the victim and not the unexpired period of service. He also submits that the Tribunal should have considered the future prospect while awarding just compensation.
5. Mr. Banik also contends that the Tribunal should have applied the structured formula readily available under the said Act of 1988 and while doing so the Tribunal should have considered the age of the victim and not the unexpired period of service. He also submits that the Tribunal should have considered the future prospect while awarding just compensation. He refers to an unreported decision passed on February 24, 2012 by a Division Bench of this Court presided over by one of us (A.K. Banerjee, J.) in the case of Smt. Rekha Chakraborty & Anr. v. United India Insurance Company Ltd. & Anr. (FMA 327 of 2010). 6. Opposing the appeal Mr. Saibalendu Bhowmick, learned Counsel appearing for the Insurance Company has drawn our attention to the evidence of the claimant, being the respondent No. 1, who in her cross-examination admitted that she would be receiving a sum of Rs. 1 lakh from the Insurance Company on account of accident. She also admitted that her daughter would be getting compassionate appointment. 7. Mr. Bhowmick relies on a decision of the apex Court in the case of Bilkish v. United India Insurance Co. Ltd. And another, reported in 2008 ACJ 1357 in this regard. He also refers to the decision in the case of Bhakra Beas Management Board v. Smt. Kanta Aggarwal & Ors., reported in 2008 AIR SCW 5256. 8. We have considered the rival contentions. In our view, the Tribunal should not have placed reliance on the issues, which are not at all relevant in an application under Section 166. The widow admitted that she was expecting to get Rs. 1 lakh from the Insurance Company out of the accident. In what context she made such statement, is not clear from the cross-examination. Even the question put to her, is not available for our consideration. Similarly, the eventuality of compassionate appointment cannot be the guiding factor in an application under Section 166 of the said Act of 1988. In our view, Helen C. Rebello (Supra), made it clear in paragraphs 37 and 38 of the said decision, so quoted above. 9. On the issue of applicability of the structured formula, we are of the view that when a ready reckoner is available, there is no bar in applying such reckoner particularly when the victim had a definite income.
In our view, Helen C. Rebello (Supra), made it clear in paragraphs 37 and 38 of the said decision, so quoted above. 9. On the issue of applicability of the structured formula, we are of the view that when a ready reckoner is available, there is no bar in applying such reckoner particularly when the victim had a definite income. In this regard we may rely upon the Apex Court decision in the case of Smt. Sarala Verma and others v. Delhi Transport Corporation and Another, reported in 2009 (2) T.A.C. 677 (S.C.). The Apex Court was of the view that the structured formula could be applied in this type of cases by considering the unexpired period of service. We also get the assistance of the said decision to answer the plea raised by Mr. Banik on future prospect. In the said case it was categorically observed that the age of the victim should be the guiding factor to find out possibility of future prospect. While saying so, the Apex Court was of the view that the persons having died beyond 50 years would have little future prospect and there should not be any addition after applying the structured formula taking the unexpired period of service as the yardstick. 10. Applying such ratio we are of the view, that the victim died while in service having a definite income. His heirs should get appropriate compensation and such appropriate compensation can be arrived at by applying the structured formula considering the unexpired period of service. From the record we find that the victim was receiving a gross salary of Rs. 12,855/-. Considering usual deductions, we round of the income as Rs. 12,000/- and apply the multiplier of 9 for the unexpired period of service. While we reject the claim on account of furure prospect, we feel, interest of justice would sub-serve if we consider the future increments and promotions, which the victim might get if alive and working apart from usual enhancement in dearness allowance and other perquisites. We have considered such aspect in Smt. Rekha Chakraborty (Supra) and awarded a sum of Rs. 60,000/- lump sum. In this case also we award the same amount following the decision in the case Smt. Rekha Chakraborty (Supra). The award is, thus, modified as follows :- Annual income of the deceased Rs. 1,44,000/- Less ⅓rd deduction Rs. 48,000/- Rs.
We have considered such aspect in Smt. Rekha Chakraborty (Supra) and awarded a sum of Rs. 60,000/- lump sum. In this case also we award the same amount following the decision in the case Smt. Rekha Chakraborty (Supra). The award is, thus, modified as follows :- Annual income of the deceased Rs. 1,44,000/- Less ⅓rd deduction Rs. 48,000/- Rs. 96,000/- Multiplier of 9 (9 x Rs. 96,000) Rs. 8,64,000/- Lump sum amount Rs. 60,000/- Total Rs. 9,24,000/- 11. The awarded amount would carry interest at the rate of 7% p.a. on and from August 16, 2004, being the date of making claim petition until it is actually paid. 12. The Insurance Company is directed to pay the compensation together with interest to the claimant through account payee cheque to be sent at the recorded address by registered post with acknowledgement due. Such payment must reach the claimant within a period of four weeks from the date of communication of this order. 13. The Insurance Company would also be entitled to withdraw the sum now kept as statutory deposit along with interest, if any, accrued in the meantime after the payment is made to the claimant in terms of the forgoing order. 14. There would be no order as to costs. 15. The appeal is disposed of accordingly without any order as to costs. 16. The Registry is directed to send down the records at once, if received by this time. 17. Urgent xerox certified copy of this order, if applied for, be given to the parties, on priority basis.