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2019 DIGILAW 1075 (GAU)

Khairun Nehar v. Union of India

2019-09-19

MICHAEL ZOTHANKHUMA

body2019
JUDGMENT : Michael Zothankhuma, J. Heard Mr. S. Alim, learned counsel for the appellants/claimants. Also heard Ms. P. Das, on behalf of Mr. S.C. Keyal, counsel for the respondent Nos. 1 to 3. Mr. A. Dey appears for the respondent No. 4. No one appears for respondent Nos. 5 and 6. 2. This appeal has been filed against the judgment dated 05.08.2017 passed by the learned Member, MACT No. 3, Kamrup (M) in MAC Case No. 1492/2013. 3. The learned counsel for the appellants submits that his challenge to the impugned judgment is only on two grounds, i.e. (1) the learned Tribunal could not have deducted the family pension while computing the loss of dependency/compensation payable to the appellants/claimants and (2) the learned Tribunal after deducting 1/4 of the income of the deceased as his personal expenses, had illegally deducted another amount of Rs. 1,000/- per month as the pocket money of the deceased. 4. Ms. P. Das, learned counsel for the respondent Nos. 1 to 3 submits that she has no comments to make in respect of the submissions taken by the appellant's counsel. However, she prays that the impugned judgment should also be modified in respect of the compensation amount awarded under the conventional heads, which is not in consonance with the judgment of the Constitution Bench of the Supreme Court in the case of National Insurance Co. Ltd. v. Pranay Sethi & Ors., (2017) 16 SCC 680 . 5. I have heard the counsels for the parties. 6. The brief facts of the case is that on 14.09.2009, while the deceased was travelling in a Maruti ALTO, a K.A.L.S. (Shaktiman) bearing Registration No. 01-D-130381 dashed against the Maruti ALTO, due to which the deceased succumbed to his injuries. 7. A claim petition was filed by the appellants and the learned Tribunal awarded compensation amounting to Rs. 6,37,728/- along with interest @ 6 % p.a. from the date of filing of the evidence on affidavit of P.W. No. 4, i.e. on 24.02.2016 till final payment. The learned Tribunal also passed the following directions in Para 26 of the impugned judgment as follows:- "26. The opposite party Nos.1, 2 & 3 is further directed that a sum of Rs. The learned Tribunal also passed the following directions in Para 26 of the impugned judgment as follows:- "26. The opposite party Nos.1, 2 & 3 is further directed that a sum of Rs. 2,00,000/- (two lakh) is to be deposited in any nationalized bank in the name of the claimant No. 1, the wife of the deceased against F.D. for a period of 10 (ten) year. A sum of Rs. 50,000/- each is to be deposited in any nationalized bank in the name of the Claimant Nos. 3, 4 & 5 the children of the deceased, respectively. The remaining amount would be paid to the claimant No. 1 along with the interest." 8. With regard to the 1st ground of challenge taken by the appellants, i.e. the deduction of family pension by the learned Tribunal from the compensation awarded to the appellants, it would be profitable to quote extracts of the judgments of the Apex Court in Helen C. Rebello (Mrs) and others v. Maharashtra State Road Transport Corporation and another, (1999) 1 SCC 90 and Lal Dei And Others vs. Himachal Road Transport, (2007) 8 SCC 319 . In the case of Helen C. Rebello and others (supra), the Apex Court was to decide the question whether the life insurance money of the deceased was to be deducted from the claimants compensation, receivable under the Motor Vehicles Act, 1939. The Apex Court in Para 30, 31 and 34 has stated as follows:- "30. This being so, we finally revert to the question which is in issues for consideration, whether the compensation computed under the 1939 Act, the life insurance amount received by the claimants occasioned by the death of the deceased, is deductible from it or not. 31. Submission by the learned counsel for the appellants is that the insurance money is by virtue of a contractual relationship between the deceased and the insurance company and is payable to the legal heirs of the deceased in terms of the contract. Such money cannot be said to have been received by the heirs only on account of the death of the deceased, but truly it is a fruit of the premium paid by the deceased during his lifetime. The deceased bought this insurance policy as an act of his prudence, to confer benefit either on himself or on his heirs in case of death. The deceased bought this insurance policy as an act of his prudence, to confer benefit either on himself or on his heirs in case of death. This amount is receivable by the claimant irrespective of accidental death, even if he would have died a natural death. He further submits that the interpretation given by the High Court confers benefit on the tortfeasor for his negligence and wrong leading to untimely death without any contribution by him. It permits him to escape from the liability cast by the statue. Thus, his submission is that any amount payable under any contract of social assurance or any insurance, ought not to be deducted as the same is payable to the heirs because of the contract and not on account of the death of the insured person. Referring to the dictionary meaning of the word "compensation", he submits it would mean anything given to make things equal in value. He submits that in this case the death of the deceased-husband of the claimant which was due to the negligence of the respondents has to be offset by a just equivalent, where the claimants are put back in a position where they would have been but for such death. On this, he draws the conclusion that the benefits of the insurance policy cannot be deducted while awarding the restricted the argument as was advanced before the High Court and submitted that the High Court, after considering all aspects including English decisions and the decisions of this Court, rightly concluded to deduct the life insurance money out of the compensation payable to the claimant. 34. 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 MAC Appeal No. 173/2013 Page 11 of 21 for his employee but in both cases he receives the amount without his contribution. 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 MAC Appeal No. 173/2013 Page 11 of 21 for his employee but in both cases he receives the amount without his contribution. How thus an amount earned out of one's labour or contribution towards one's 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 one's accidental death. This, of course, is pecuniary gain but how this is equitable or could be balanced out of the amount to be received as compensation under the Motor Vehicle 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." In the case of Lal Dei And Others (supra), the Apex Court has held in Para 4 as follows:- 4. It is contended by the learned counsel for the appellant that while calculating the dependency, the Motor Accidents Claims Tribunal as well as the High Court committed an error in deducting the family pension amount. We find that the submission made by the counsel for the appellant is correct. The Motor Accidents Claims Tribunal as well as the High Court could not have deducted the amount of family pension given to the family while calculating the dependency of the claimants. In Helen C. Rebello v. Maharashtra SRTC 1 this Court has specifically dealt with this question and said that the family pension is 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. In Helen C. Rebello v. Maharashtra SRTC 1 this Court has specifically dealt with this question and said that the family pension is 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. There is no-relation between the two and therefore, the family pension amount paid to the family cannot be deducted while calculating the compensation awarded to the claimants. In view of this, the appeal is allowed. The order of deduction of the family pension is set aside. The judgments of the Apex Court in Helen C. Rebello and others (supra), and Lal Dei and Others (supra), has been followed by this Court in the case of Luna Devi & Ors. Vs. National Insurance Co. Ltd. & Ors., (2016) 1 GauLT 426 . 9. In view of the settled position of law, which is to the effect that family pension payable to the claimants, cannot be deducted from the compensation amount awarded or to be awarded to the claimants, the Learned Tribunal committed an error in deducting family pension from the total loss of dependency/compensation payable to the claimants. 10. With regard to the 2nd ground of challenge taken by the appellants, i.e. the learned Tribunal could not have deducted an additional amount of Rs. 1,000/- per month as pocket money from the deceased, after 1/4th of the income of the deceased had been deducted as personal expenses, this Court finds that the said challenge has force. 11. The personal expenses of the deceased would have to include pocket money, as otherwise, the use of the word personal expenses would not be complete. The use of pocket money is also for personal expenses and accordingly, this Court is of the view that the use of the word personal expenses includes within it's term, the word pocket money. 12. In that view of the matter, this Court also finds that the learned Tribunal has committed an error in deducting Rs.1,000/- per month from the loss of dependency/compensation amount awarded, after having already deducted 1/4th of the income of the deceased as personal expenses. 13. 12. In that view of the matter, this Court also finds that the learned Tribunal has committed an error in deducting Rs.1,000/- per month from the loss of dependency/compensation amount awarded, after having already deducted 1/4th of the income of the deceased as personal expenses. 13. The above being said, the further question that is to be looked into is, whether the compensation paid under the conventional heads by the learned Tribunal was in consonance with the decision of the Apex Court in Pranay Sethi & Ors., (supra). In Pranay Sethi & Ors., (supra), the Apex Court has laid down guidelines, whereby compensation was provided only under three heads and the compensation amount was also indicated therein, i.e., for loss of Estate Rs. 15,000/-, for funeral expenses Rs. 15,000/- and for loss of consortium Rs. 40,000/-. 14. In the present case, the learned Tribunal has awarded Rs. 50,000/- towards loss of consortium Rs. 1.5 Lakhs for love and affection @ Rs. 50,000/- each, Rs. 25,000/- for funeral expense, Rs. 50,000/- for loss of Estates and other expenses like carrying dead body Rs. 10,000/-. The above compensation amounts awarded by the learned Tribunal under the heads indicated above would have to be modified in line with the compensation awarded under conventional heads indicated in Pranay Sethi & Ors., (supra). In view of the above reasons, the compensation payable to the appellants would be as follows:- 1. Net income 27,021/- 2. Loss of Dependency=27,021/-X12X9X3/4 21,88,701/- 3. Loss of Consortium Rs. 40,000/- 4. Loss of Estate Rs. 15,000/- 5. Funeral Expense Rs. 15,000/- Total Rs. 22,58,701/- 15. The respondent Nos. 1 to 3 are accordingly directed to pay and deposit the total compensation amount of Rs. 22,58,701/- in the learned Member, MACT No. 3, Kamrup (M), along with interest @ 6 p.a. from the date of filing of the evidence on affidavit of P.W. No. 4, i.e. on 24.02.2016 till final payment. The said money shall thereafter be disbursed to the appellant Nos. 1 to 4. 16. The respondent Nos. 1 to 3 are directed to deposit in any nationalized bank, fixed deposits of Rs. 3 Lakhs each in the name of the appellant Nos. 1 to 4 for a period of 10 years. The remaining amount will be paid to the appellant Nos. 1 to 4 through the appellant No. 1, after proper identification. 17. 16. The respondent Nos. 1 to 3 are directed to deposit in any nationalized bank, fixed deposits of Rs. 3 Lakhs each in the name of the appellant Nos. 1 to 4 for a period of 10 years. The remaining amount will be paid to the appellant Nos. 1 to 4 through the appellant No. 1, after proper identification. 17. The appeal is accordingly allowed and consequently the impugned judgment dated 05.08.2017 passed by the learned Member, MACT No. 3, Kamrup (M) in MAC Case No. 1492/2013 is modified to the extent indicated above. 18. Send back the LCR.