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2022 DIGILAW 770 (ALL)

Raja Beti v. Ashok Kumar

2022-05-16

VIPIN CHANDRA DIXIT

body2022
JUDGMENT : 1. Heard Sri Ashok Kumar Singh and Sri Amit Kumar Sinha, learned counsel for the appellants and Sri N.K. Srivastava, learned counsel for the respondent no. 5 and perused the record. No one is present on behalf of other respondents. 2. This first appeal from order has been filed by the claimants-appellants for enhancement of compensation against the judgment and award dated 08.08.2005, passed by Ist Additional District Judge / Motor Accident Claims Tribunal, Chitrakoot, in M.A.C.P. No. 163/70 of 2000 (Raja Beti and others vs. Ashok Kumar and others) by which compensation of Rs.65,000/- only has been awarded to the claimants on account of death of Sri Bachcha Lal, aged about 42 years. 3. It is submitted by learned counsel for the claimants-appellants that the deceased was working as Lekhpal in Tehsil Karvi, District Chitrokoot at the time of accident and was getting salary of Rs. 7,000/-per month. The Claims Tribunal had acted in arbitrary manner has awarded only Rs. 65,000/- on the ground that after the death of Bachcha Lal, the claimant appellant no. 1 who is widow of Bachcha Lal was getting family pension @ Rs. 3,500/-per month and was also provided employment under the Dying in Harness Rules and was also getting salary to the tune of Rs. 4,000/-per month. The Claims Tribunal was of the view that since the widow was getting family pension as well as employment under the Dying in Harness Rules and receiving Rs. 7,500/-per month and there is no financial loss to the family of the deceased on account of death of Baccha Lal. The Claims Tribunal had awarded Rs. 50,000/- for loss of consortium, Rs. 5,000/- for funeral expenses and Rs. 10,000/- for pain and suffering and total amount of Rs. 65,000/- has been awarded to the claimants. 4. Learned counsel for the appellants has placed reliance upon the judgment of Hon'ble Apex Court in the cases of Vimal Kanwar and others vs. Kishore Dan and Others reported in 2013 (3) T.A.C. 6 (S.C.). The relevant paragraph no. 19 and 20 are reproduced herein below :- "19. 65,000/- has been awarded to the claimants. 4. Learned counsel for the appellants has placed reliance upon the judgment of Hon'ble Apex Court in the cases of Vimal Kanwar and others vs. Kishore Dan and Others reported in 2013 (3) T.A.C. 6 (S.C.). The relevant paragraph no. 19 and 20 are reproduced herein below :- "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) and others vs. Maharashtra State Road Transport Corporation & Anr. reported in (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. 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. 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. 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. 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. 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." 5. It is submitted by learned counsel for the appellant that the family pension and salary received on appointment under dying in harness cannot be treated as pecuniary benefits and are not liable to be deducted for determination of compensation. 6. On the other hand learned counsel appearing on behalf of respondent-Insurance Company has submitted that the compensation awarded by the Claims Tribunal is just and proper and no ground for enhancement is made out but he has not disputed the aforesaid legal positions. 7. From the perusal of impugned award, it is apparent that nothing has been awarded by the Claims Tribunal towards pecuniary loss to the legal heirs of deceased and only Rs. 7. From the perusal of impugned award, it is apparent that nothing has been awarded by the Claims Tribunal towards pecuniary loss to the legal heirs of deceased and only Rs. 65,000/- has been awarded towards non pecuniary damages, whereas, the law has been settled by the Hon'ble Apex Court in the case of Vimal Kanwar (supra) that the amount received by the widow towards family pension and the salary received on compassionate appointment under the Dying in Harness Rules cannot be deducted from the compensation for which claimants are entitled under the Motor Vehicles Act. 8. The compensation for which the claimants are entitled under the Motor Vehicles Act are reassessed. There is no dispute regarding the age of the deceased as 42 years at the time of accident. It is also undisputed that the deceased was working as Lekhpal in Tehsil Karvi, District Chitrakoot and was getting salary of Rs. 7,000/- per month. 9. The Hon'ble Apex Court in the case of Smt. Sarla Verma vs. D.T.C. reported in 2009 (2) T.A.C. 677 (S.C.) has provided the multiplier of 14 for the age group of 41 to 45 years and it is also provided that deduction should be 1/4th where the number of dependents are 4 to 6. The relevant paragraphs no. 14 and 21 are reproduced herein below :- "14. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardized deductions. Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependant family members is 4 to 6, and one-fifth (1/5th) where the number of dependant family members exceed six. 21. 21. We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years." 10. Since, the age of the deceased was 42 years at the time of accident, the appropriate multiplier would be 14 and since, there was five dependents on the income of the deceased, the deduction towards personal expenses would be 1/4th. 11. The Hon'ble Apex Court in the case of National Insurance Company Ltd. vs. Pranay Sethi reported in 2017 (4) T.A.C. 673 has also provided 30% future prospectus for the age group of 40 to 50 years the claimants are also entitled for 30% future prospectus. The Hon'ble Apex Court has also provided certain guidelines for calculating the just compensation under the Moter Vehicles Act. Relevant paragraph 61 is reproduced herein below :- "61. In view of the aforesaid analysis, we proceed to record our conclusions: (i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench. (ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent. (iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. (iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. (iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. (v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore. (vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment. (vii) The age of the deceased should be the basis for applying the multiplier. (viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years." 12. Considering the facts and circumstances of the case and law settled by Hon'ble Apex Court, the compensation awarded by the Claims Tribunal is reassessed as follows : 1. Monthly Income Rs.7,000/- 2. Annual Income Rs.7,000//-x 12 = Rs.84,000/- 3. Future prospects (30%) Rs.25,200/- 4. Total Annual Income Rs.84,000/- + Rs.25,200/- = Rs.1,09,200/- 5. Deduction towards personal expenses (1/4th) Rs.1,09,200/- - Rs.27,300/- = Rs.81,900/- 6. Multiplier applicable (14) Rs.81,900/- x 14 = Rs.11,46,600/- 7. Non-pecuniary damages Rs.70,000/- Total Rs.11,46,600/- + Rs.70,000/- = Rs.12,16,600/- 13. The Appeal is hereby partly allowed and award of the Claims Tribunal is modified and compensation awarded by the Claims Tribunal is enhanced from Rs.65,000/- to Rs.12,16,600/-. Deduction towards personal expenses (1/4th) Rs.1,09,200/- - Rs.27,300/- = Rs.81,900/- 6. Multiplier applicable (14) Rs.81,900/- x 14 = Rs.11,46,600/- 7. Non-pecuniary damages Rs.70,000/- Total Rs.11,46,600/- + Rs.70,000/- = Rs.12,16,600/- 13. The Appeal is hereby partly allowed and award of the Claims Tribunal is modified and compensation awarded by the Claims Tribunal is enhanced from Rs.65,000/- to Rs.12,16,600/-. The claimants-appellants are also entitled for interest at the rate of 7% on the enhanced amount from the date of filing claim petition. The respondent-Insurance Company is directed to pay enhanced amount a well as interest to the claimants within two months from today. 14. No order as to costs.