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2017 DIGILAW 2953 (ALL)

MALTI SINGH v. GURDEEP SINGH

2017-12-15

A.P.SAHI, SARAL SRIVASTAVA

body2017
JUDGMENT : Saral Srivastava, J. This appeal has been filed by the claimants for enhancement of the compensation awarded by the Tribunal in relation to the death of Sri Birendra Nath Singh who was a Sub-Inspector in U.P. Police who died on 15.02.1992. 2. He was riding a scooter when a truck hit him resulting in the death of the deceased. 3. The Tribunal while proceeding to award the compensation has taken into account, the family pension paid to the family of the deceased and has deducted the same from the actual income on the basis where of the calculation of compensation has to be made. Learned counsel for the appellant submits, that this approach of the Tribunal is erroneous, keeping in view the law laid down by the Apex Court in the case of Sri Vimal Kumar and others v. Kishore Dan and others 2013 (7) SCC 476 . 4. He has invited the attention of the Court to paragraph no. 20 of the said judgment to substantiate the aforesaid submissions. Further, the issue of future prospects and other payments on non-conventional heads has also been raised that has not been paid for which a prayer has been made together with such other benefits which are admissible keeping in view the Constitution Bench judgment in the case of National Insurance Company Ltd. v. Pranay Sethi and others in Special Leave Petition (Civil) No. 25590 of 2014 decided on 31.10.2017. 5. We have heard Sri Pankaj Rai, learned counsel for the Insurance Company who submits that the conventional heads have been taken into account and rather the interest paid by the Tribunal is on the higher side, and therefore the appellants have been compensated comfortably so as to provide just and fair compensation. 6. We have considered the submissions raised. The first issue is with regard to the approach of the Tribunal in proceeding to deduct the pecuniary advantage being obtained by the family of the deceased in the shape of family pension. A similar issue where the dependent of the deceased was given compassionate appointment, and the same was made the basis for deduction, came to be considered by the Apex Court in the case of Vimal Kumar (supra) wherein paragraph 20 the Apex Court ruled that the same cannot be termed as a pecuniary advantage coming under the periphery of the Motor Vehicles Act, 1988. Paragraph 20 is extracted here in under :- "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 Pecuniary 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 harness i.e. while in service leaving behind the dependents, on the of the dependents may request for compassionate appointment to maintain the family of the deceased employee dies in harness. This cannot be stated to be an advantage receivable by the heirs on account of ones death and have 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 dependents 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." 7. Applying the said reasoning as extracted here in above, the disbursement of a family pension to the dependent of the deceased would also not come within the definition of a pecuniary advantage as understood in terms of the Motor Vehicles Act, 1988. Consequently, the Tribunal fell into an error in proceeding to make adjustment on that count. 8. The second issue is with regard to the payment on non-pecuniary and conventional heads. From the impugned judgment, we find that a sum of Rs. 40,000/- has been awarded for loss of consortium. This is in tune with the directions given by the Constitution Bench in the judgment in the case of National Insurance Company Ltd. (supra). However the other conventional head of loss of estate and funeral expenses have not been taken care of and, consequently we direct that the appellants would also be entitled to a sum of Rs. 15,000/- on the head of loss of estate and Rs. 15,000/- as against funeral expenses. 9. However the other conventional head of loss of estate and funeral expenses have not been taken care of and, consequently we direct that the appellants would also be entitled to a sum of Rs. 15,000/- on the head of loss of estate and Rs. 15,000/- as against funeral expenses. 9. The third advantage to which the appellants are entitled is in relation to the future prospects of the deceased, and consequently the income of the deceased ought to have been taken into account with a further calculation of the future prospects that would be available to the claimants as has been held by the Apex Court in the Constitution Bench judgment of National Insurance Company Ltd. (supra). The age of the deceased at the time of death was 36 years and he had ample service left. He was a government employee and was being paid a salary of Rs. 4376/- per month. In the circumstances and keeping in view the ratio of the judgment of the Apex Court aforesaid, we find that the appellants are entitled to 50% of enhancement in future prospects, keeping in view the nature of the employment of the deceased. We accordingly, direct the Tribunal to recalculate the entire amount awarded after applying the same as well as the directions given here in above. 10. The Insurance Company shall recalculate the entire amount payable to the claimants accordingly and release the payments to the appellants within three months. The appellants shall also be entitled to 6% interest on the enhanced amount of payment that would be due to them on such recalculation from the date of the Institution of the claim. 11. The appeal, is accordingly allowed to the aforesaid extent. No order as to costs.