Research › Search › Judgment

Rajasthan High Court · body

2021 DIGILAW 1523 (RAJ)

Chanda Devi v. Charanjeet Singh

2021-08-17

VINIT KUMAR MATHUR

body2021
JUDGMENT Vinit Kumar Mathur, J. - The present appeal has been preferred by the appellantsclaimants against the judgment and award dated 27.09.2011 passed by Motor Accident Claims Tribunal, Sri Ganganagar in Claim Case No. 127/2007 whereby, the learned Tribunal awarded a sum of Rs. 2,41,684/- in their favour on account of the death of Kishna Ram in the accident which occurred on 05.11.2006. 2. Learned Tribunal after framing the issues, evaluating the evidence on record and hearing the learned counsel for the parties decided the claim petition of the appellants-claimants. 3. Learned counsel for the appellants-claimants submitted that the finding of the Tribunal on Issue No. 2 is erroneous as the total monthly income of the deceased Kishna Ram was Rs. 10,668/- whereas the Tribunal wrongly deducted the amount of Rs. 5,723/- which he was getting as pension, from his total monthly income. He submitted that the pension amount cannot be deducted from the total monthly income of the deceased while computing the award. To buttress his arguments, learned counsel for the appellants-claimants has relied upon the judgment of Hon'ble the Supreme Court in the case of Vimal Kanwar & Ors. vs. Kishore Dan & Ors.,2013 RAR 118 (SC). 4. He further submitted that no amount towards loss of future prospects was awarded by the Tribunal to the appellantsclaimants. Since the deceased was 45 years of age at the time of accident, learned counsel submitted that amount towards loss of future prospects is liable to be awarded to the appellantsclaimants in view of the judgment of Hon'ble the Supreme Court in the case of National Insurance Company Ltd. vs. Pranay Sethi, (2017) AIR SC 5157. 5. Learned counsel for the appellants-claimants also submitted that despite there being evidence on record showing that there are total four dependents of the deceased, the Tribunal only deducted 1/3rd amount to be spent on the deceased himself, whereas it should have been a deduction of 1/4th amount of total income. He further submits that although the son of the deceased Bhagirath is major, but he was dependent on the income of the deceased. 6. He further submits that although the son of the deceased Bhagirath is major, but he was dependent on the income of the deceased. 6. Per contra, the learned counsel for the respondent-Insurance Company supported the judgment of the Tribunal dated 27.09.2011 and submitted that the finding on Issue No.2 does not suffer from any infirmity as the Tribunal, while computing the income of the deceased, rightly deducted the pension of the deceased from his total monthly income. He further submitted that the compensation awarded in the present case is a 'just compensation' and it does not warrant any interference by this Court. 7. He also submitted that it has come on record in the cross examination of Chanda Devi that the major son of the deceased, namely, Bhagirath is an agriculturist and is involved in the work of farming and, therefore, he was not dependent on his deceased father. He, therefore, submitted that Tribunal has rightly deducted the amount to the extent of 1/3rd of total income. 8. I have considered the submissions made at the Bar and have gone through the judgment dated 27.09.2011 as well as relevant record of the case. 9. The finding of the Tribunal on Issue No.2 inasmuch as deducting the pension amount of the deceased from the total monthly income is erroneous as the income towards the pension is also an income of the deceased and the same was being utilized for his personal and other domestic purposes, therefore, deduction of the same from the total income is incorrect. On this issue, Hon'ble the Supreme Court in the case of Vimal Kanwar (supra) held 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 (Mrs) & Ors. vs. Maharashtra State Road Transport Corporation & Anr., (1999) 1 SCC 90 . 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. 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: "35. 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 is received either by the insured or the heirs of the insured on account of the contract with the insurer, for which the 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 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. 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 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. 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 "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 in harness i.e. while in service leaving behind the dependents, one 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 one's 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. 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." 10. Thus, the Tribunal fell in error while deducting the pension of the deceased from his total income while computing the award in the present case. 11. The Tribunal also committed an error while not taking into consideration the amount towards the loss of future prospects in view of the judgment of Hon'ble the Supreme Court in the case of Pranay Sethi (supra). Thus, the same is also required to taken into consideration while computing the award. 12. As far as the argument of the learned counsel for the appellants-claimants with regard to the amount to be spent on the deceased should be 1/4th of the monthly income is concerned, the same is not correct as the Tribunal rightly considered the evidence on record and came to the conclusion that only three persons were dependent on deceased Kishna Ram and the fourth person i.e. son of the deceased is a major person involved in agricultural activities, therefore, it cannot be said that he was dependent on his deceased father. Therefore, the deduction was rightly done by the Tribunal to the extent of 1/3rd. 13. In view of the discussions made above, the re-computation of the award in the present case is as under:- For future prospects :- 30% of Rs.10,668/- (Income of deceased) Rs. 3,200/- (Rounded Off) Rs. 10,668/-+ Rs. 3,200/- Rs. 13,868/- Amount to be deducted as spent on himself. Rs. 13,868/- / 1/3= Rs. 4623/- (Rounded Off) Dependence Amount Rs.13,868? Rs. 4623= Rs. 9,245/- 14. The age of deceased was 45 years, therefore, a multiplier of 13 will be applied. (I) Compensation due to death 9,245 x12 x 13 Rs. 14,42,220/- (II) Other Conventional Heads Rs. 77,000/- Total Rs. 15,19,220/- Amount already awarded by the Tribunal Rs. 2,41,684/- Enhanced amount Rs. 12,77,536/- 15. 4623/- (Rounded Off) Dependence Amount Rs.13,868? Rs. 4623= Rs. 9,245/- 14. The age of deceased was 45 years, therefore, a multiplier of 13 will be applied. (I) Compensation due to death 9,245 x12 x 13 Rs. 14,42,220/- (II) Other Conventional Heads Rs. 77,000/- Total Rs. 15,19,220/- Amount already awarded by the Tribunal Rs. 2,41,684/- Enhanced amount Rs. 12,77,536/- 15. Thus, the appeal preferred by the appellants-claimants is partly allowed. The respondent-Insurance Company is directed to pay the enhanced amount of Rs.12,77,536/- (Rs. Twelve Lac Seventy Seven Thousand Five Hundred Thirty Six Only) in favour of the appellants-claimants in addition to the amount of compensation already awarded by the Tribunal vide its judgment dated 27.09.2011 within a period of six weeks from today. The enhanced amount shall carry interest @ 6% p.a. from the date of filing of the claim petition, till the same is paid.