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2014 DIGILAW 907 (RAJ)

National Insurance Co. Ltd. v. Kani Devi

2014-04-10

SANDEEP MEHTA

body2014
JUDGMENT : - Hon'ble MEHTA, J.— Heard learned counsel for the parties. 2. The instant appeal has been preferred by the appellant National Insurance Company Ltd. against the judgment and award dated 7.6.2007 passed by the learned Motor Accident Claims Tribunal, Ratangarh in Motor Accident Claim Case No. 58/2005 (Kani Devi & Ors. vs. Puna Ram & Ors.) whereby the learned Tribunal partly accepted the claim application filed by the claimants being the legal representatives of late Shri Jagdish Prased and awarded them compensation of Rs. 8,64,000/- holding the appellant insurance company jointly and severally responsible to satisfy the award along with the owner and driver of the vehicle involved in the accident. 3. Briefly stated the facts of the case are that on 5.5.2005, Jagdish Prasad was proceeding in his Tempo No.RJ 10/P-4047 from Loha to Ratangarh. Sabir Ali and Aftab Aalam were also sitting in the Tempo. At that time, the non-claimant Puna Ram driving the Truck No. RJ-19/G-4387 rashly and negligently came from the opposite direction and collided with the tempo causing the death of all the three occupants. An FIR was registered in relation to the accident wherein after investigation, a charge-sheet was filed against Puna Ram in the Court of A.C.J.M., Ratangarh for the offence u/Sec. 304A IPC. The truck was owned by Pawan Kumar and insured by the appellant company. 4. A claim application was filed by the claimants/respondents herein originally impleading the owner, driver and insurer, the appellant herein, of the truck as non-claimants. Thereafter, the same was amended and the owner and insurer of the tempo involved in the accident were also impleaded as non-claimants. 5. The appellant insurance company filed a written statement to the claim application. It was pleaded in the written statement that the deceased Jagdish Prasad was not having a valid and effective driving license to drive the tempo; the cause of accident was rash and negligent driving of the tempo by Jagdish Prasad; the insurer of the tempo was not impleaded as a party to the claim; and the tempo was being driven beyond the permit area. A further specific plea was also taken by the appellant insurance company that Kani Devi, widow of Jagdish Prasad, had been granted compassionate appointment in place of Jagdish Prasad in the Railways department and was also getting family pension. A further specific plea was also taken by the appellant insurance company that Kani Devi, widow of Jagdish Prasad, had been granted compassionate appointment in place of Jagdish Prasad in the Railways department and was also getting family pension. Thus, it was pleaded that the claimants were not entitled to receive any compensation. 6. The learned Tribunal discarded all the pleas raised by the appellant insurance company in its written statement and held the claimants entitled to a total compensation of Rs.8,64,000/- as indicated above with interest of 6% per annum. 7. The appellant insurance company has approached this Court by way of the instant appeal assailing the impugned judgment and the quantum of compensation awarded to the claimants. 8. Learned counsel for the appellant insurance company has assailed the findings of the learned Tribunal principally on three issues. (1) that Jagdish Prasad was driving the tempo beyond the permit area and thus, the appellant insurance company was not liable to satisfy the award; (2) that Jagdish Prasad himself drove the tempo rashly and negligently and thus; should be held contributively responsible for the accident; and (3) that the claimant Kani Devi was given compassionate appointment in place of Jagdish Prasad in the Railways department and family pension was also being received upon the death of her husband. 9. He thus contended that the claimants are not entitled to any compensation under the head of loss of income as it amounts to double enrichment. He relied on thee decision rendered by the Hon'ble Supreme Court in the case of Bhakra Beas Management Board vs. Kanta Aggarwal & Ors. reported in 2008 ACJ 2373 in support of the contention that as the wife of the deceased had received compassionate appointment in his place in the Railways department, any award of compensation under the Motor Vehicles Act without deducting the salary received by him, would amount to pecuniary advantage. Thus, he prayed that the award be reduced appropriately by accounting for the salary which the claimant wife is receiving and the family pension as well. 10. Per contra, learned counsel for the respondents vehemently opposed the submissions advanced on behalf of the appellant insurance company. It was urged that no evidence was led by the insurance company in support of the contention that the tempo was being driven on a non permit route. 10. Per contra, learned counsel for the respondents vehemently opposed the submissions advanced on behalf of the appellant insurance company. It was urged that no evidence was led by the insurance company in support of the contention that the tempo was being driven on a non permit route. He relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Vimal Kanwar & Ors. vs. Kishore Dan & Ors. reported in 2013(2) WLC (SC) Civil 50 = 2013(3) RLW 2153 (SC) and this Court's judgment rendered in the case of Metri Sharma (Smt.) & Ors. vs. Rakesh Kumar & Ors. reported in 2014(1) DNJ (Raj.) 230 and urged that merely because the claimant wife was given compassionate appointment in place of the victim, the claimants could not be denied compensation under the Motor Vehicles Act. 11. Heard and considered the arguments advanced at the Bar and perused the impugned judgment as well as the record. 12. The first issue raised by learned counsel for the appellant was regarding the deceased driving the tempo on a route without permit. This argument need not hold the Court for a moment. The defence regarding the tempo being driven in the breach of the conditions of the insurance policy was only available to the insurer of the tempo that too if such fact was at all proved. The defence regarding breach of the policy conditions could only be raised by the appellant insurance company against the owner of the vehicle (truck) insured by it and not other vehicle. Thus this argument is of no avail to the appellant. 13. The second argument raised was regarding contributory negligence. The Tribunal after duly appreciating the evidence, recorded a finding that rash and negligent driving of the truck insured by the appellant insurance company was the cause of the accident. The said finding was not challenged very seriously by Sh. Johari, learned counsel for the appellant. I have also appreciated the evidence independently and am of the view that the finding regarding rashness and negligence recorded by the Tribunal against the truck driver is just and proper and does not call for any interference. It is significant to note here that the truck driver has not approached this Court in order to assail this finding. I have also appreciated the evidence independently and am of the view that the finding regarding rashness and negligence recorded by the Tribunal against the truck driver is just and proper and does not call for any interference. It is significant to note here that the truck driver has not approached this Court in order to assail this finding. Consequently, the appellant being the insurer of the truck which caused accident was rightly held responsible to satisfy the award. Hence, this argument advanced by Mr. Johari is noted just to be discarded. 14. The next argument which was forcefully addressed by Mr. Johari was regarding the non-entitlement of the claimants to receive compensation as the wife of the deceased Smt. Kani Devi, the claimant, had been appointed on compassionate grounds in place of her husband in the Railways. The fact regarding Kani Devi having been appointed in Railways in place of her husband is not in dispute. 15. I have carefully and respectfully gone through the judgment relied upon by the learned counsel for the appellant in the case of Bhakra Beas Management Board (supra). The issue involved before the Hon'ble Supreme Court in that case was whether the benefits which the claimant received on account of the death of her husband had to be deducted while computing the compensation upon appointment being granted to her in place of her husband. In that case, the peculiar facts were that the deceased was travelling in the vehicle of Bhakra Beas Management Board. The claim application was filed under the Fatal Accidents Act against the Bhakra Beas Management Board. By the time, the claim application was filed, the claimant had been granted appointment by Bhakra Beas Management Board itself. Thus, the relief was essentially sought against an institution which had already appointed the claimant on compassionate grounds in place of the deceased. Essentially, it was a case of dual pecuniary advantages being sought from the same institution i.e. the Bhakra Beas Management Board one by filing the claim and the other by compassionate appointment. Thus, the Hon'ble Supreme Court in the facts of that case ruled in the Board's favour. 16. Essentially, it was a case of dual pecuniary advantages being sought from the same institution i.e. the Bhakra Beas Management Board one by filing the claim and the other by compassionate appointment. Thus, the Hon'ble Supreme Court in the facts of that case ruled in the Board's favour. 16. In the case at hand, the application under Section 166 of the Motor Vehicles Act was filed seeking the relief of compensation by enforcing the statutory liability (as defined under the Motor Vehicles Act) of the insurance company as prescribed in the insurance contract. Merely because the claimant wife was given appointment on compassionate basis by the Railways, the contractual liabilities and obligations of the insurance company would not be diluted in any fashion. This Court in the case of Metri Sharma (supra) considered the issue in detail and after placing heavy reliance on the later decision rendered by the Hon'ble Supreme Court in the case of Vimal Kanwar (supra) and while dealing with the judgment of Bhakra Beas Management Board (supra), held as under:- "11. The issues of deduction raised are no more res integra. In Vimal Kanwar (supra) Hon'ble Supreme Court while dealing with the said issues held and observed as under:- "19. The first issue is "whether provident fund, pension and insurance receivable by claimants come within the periphery of the Motor Vehicles Act to be termed as `pecuniary advantage' liable for deduction?" The aforesaid issue fell for consideration before this court in Helen C. Rebello vs. Maharashtra State Road Trans. Corpn., 1999 ACJ 10 (SC). In the said case, this court held that provident fund, pension, insurance and similarly any cash, bank balance, shares, fixed deposits, etc. 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. Such an amount will not come within the periphery of the Motor Vehicles Act to be termed as `pecuniary advantage' liable for deduction. The following was the observation and finding of this Court: "(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 following was the observation and finding of this Court: "(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. 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 amount is received either by the insured of 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, 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 all are 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. 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." 20. The second issue is "whether the salary receivable by the claimant on compassionate appointment comes within the periphery of the Motor Vehicles Act to be termed as `periphery advantage' liable for deduction? `Compassionate appointment' can be one of the conditions of service of an employee, if a scheme to that effect is framed by the employer. In case the employee dies in harness, i.e., while in service leaving behind the dependants, one of the dependants may request for compassionate appointment to maintain the family of the deceased employee who dies in harness. This cannot be stated to be an advantage receivable by the heirs on account of one's death and has no correlation with the amount receivable under a statute occasioned on account of accidental death. Compassionate appointment may have nexus with the death of an employee while in service but it is not necessary that it should have a correlation with the accidental death. An employee dies in harness even in normal course, due to illness and to maintain the family of the deceased one of the dependants may be entitled for compassionate appointment but that cannot be termed as `pecuniary advantage' that comes under the periphery of Motor Vehicles Act and any amount received on such appointment is not liable for deduction for determination of compensation under the Motor Vehicles Act." 12. So far as the judgment of Hon'ble Supreme Court in the case of Bhakra Beas Management Ltd. (supra) is concerned, the issue before the Court in a fatal accident case was whether the benefits which claimants receives on account of death of her husband have to be deduced while computing the compensation and, the Court observed that the benefits, which the claimant receives on account of death or injury have to be duly considered. The law laid down by Hon'ble Supreme Court in the case of Vimla Kanwar (supra) takes into consideration the fact as to whether the compassionate appointment comes within the periphery of the Motor Vehicles Act to be termed as `pecuniary advantage' and is liable for deduction and on consideration, it has been held that the same cannot be said to be pecuniary advantage so as to come within the periphery of Motor Vehicles Act, and the said amount was not liable for deduction for determination of compensation under the Motor Vehicles Act." 17. Thus, it is clear that the judgment rendered by the Hon'ble Supreme Court in the case of Vimal Kanwar (supra) answers the issue raised by the learned counsel for the appellant insurance company to the fullest and beyond all manner of doubt. It was in unequivocal terms held in the said case that the salary received pursuant to compassionate appointment cannot be covered within the meaning of `pecuniary advantage' when compensation is sought under the Motor Vehicles Act under the head of statutory liability. 18. In this view of the matter, this Court is of the opinion that the learned Tribunal committed no error in accepting the claim application filed by the claimants and awarding them the compensation of Rs. 8,64,000/- on the death of Jagdish Prasad. 20. There shall be no order as to costs. 21. Record of the learned Tribunal be sent forthwith.