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2025 DIGILAW 34 (BOM)

Union of India v. Malti Wd/o Madhukar Ghode

2025-01-03

SANJAY A.DESHMUKH

body2025
JUDGMENT : 1. This appeal is preferred by the employer-original respondents against the judgment and award dated 16.12.2005, passed by the learned Member, Motor Accident Claims Tribunal, Nagpur, in Motor Accident Claim Petition No. 1069 of 1998. 2. CLAIM i) The petitioners contended that Madhukar Ghode, who died in a motor vehicular accident, was a senior agricultural scientist serving with the Union of India, at Nagpur. ii) The petitioner No.1 in the claim petition, Smt. Malti, is the wife, petitioner Nos.2 and 3 Apeksha and Pratiksha, respectively, are the daughters of deceased Madhukar whereas petitioner No.4, 5 and 6 Utkarsha, Sudhanshu and Nikhil, respectively, are the sons of deceased Madhukar. iii) On 4.6.1998, Madhukar, after completion of his duty, was returning from Gondia to Nagpur, by the official mini bus bearing No. MH-31-7261. The said bus met with an accident because of rash and negligent driving of respondent No.7, at 12.30 a.m. He was driving that bus in rash and negligent manner. The accident occurred near Bhilewada Shivar, District Bhandara. Madhukar died on the spot. The driver of the bus was prosecuted for rash and negligent driving. iv) The petitioners had contended that they were depending upon the income of the deceased Madhukar and they claimed compensation of Rs.41,00,000/-. 3. DEFENCE i) The appellants/respondent Nos. 1 and 2 resisted the claim petition. They admitted the relationship between the claimants and the deceased Madhukar, as well as the occurrence of accident. They further contended that an amount of Rs.2,12,572/- has been paid on account of Government Insurance and under various schemes to the claimants. The petitioners also received amount of Rs.8,03,521/- as GPF. The petitioner No.1 – wife of deceased Madhukar, has been sanctioned the pension of Rs.7249/- p.m. ii) It is further contended that the respondents have provided employment to one of the petitioner i.e. petitioner No. 4 Utkarsha - respondent No. 3 herein, on compassionate ground. Therefore, the petitioners are not entitled for compensation. iii) It is also contended that the log book of the said vehicle was incomplete and has been misused at the instance of deceased Madhukar. Although the vehicle was a Government vehicle but it was used by deceased Madhukar for his personal work. It was therefore, lastly prayed that the claim petition be dismissed. 4. iii) It is also contended that the log book of the said vehicle was incomplete and has been misused at the instance of deceased Madhukar. Although the vehicle was a Government vehicle but it was used by deceased Madhukar for his personal work. It was therefore, lastly prayed that the claim petition be dismissed. 4. Respondent No.3, the driver of the said bus, contended that when the bus had reached near Bhilewada Shivar, a truck came from the opposite direction in high speed with full headlights and that gave cut to his bus and due to which the accident occurred. 5. The learned Tribunal while answering three issues, held that death of Madhukar in the vehicular accident is proved. The petitioners were depending on the income of deceased Madhukar and therefore, they are entitled for compensation. An amount of Rs.15,49,700/- was awarded as compensation. 6. The learned advocate Ms. Mugdha Chandurkar, for the appellants pointed out the grounds of objections in this appeal and submitted that one of the claimant viz. Urkarsha has got the job in the department of agriculture of the Central Government, on compassionate ground. Therefore, the compensation amount awarded to the petitioners should be reduced accordingly. However, the learned tribunal did not consider the said aspect. She is relying upon the following precedential laws:- i) Rajasthan State Road Transport Corporation vs. Danish Khan (2019) 9 SCC 558 , in which, in para 10, it was held that:- “10. It is useful to refer to a judgment of this Court in National Insurance Company Limited vs. Rekhaben. The question that arose for consideration of this Court related to the deduction of salary that was earned by the claimant therein after being appointed on compassionate grounds while calculating the compensation payable to her under the Act for the death of her husband. It was held that the salary earned by compassionate appointment cannot be deducted from the compensation which the claimant is entitled under the Act. However, it was made clear that the salary which flowed from the compassionate appointment that was provided by the tortfeasor was liable to be deducted if the employer was the owner of the offending vehicle and thus liable to pay compensation under the Act. However, it was made clear that the salary which flowed from the compassionate appointment that was provided by the tortfeasor was liable to be deducted if the employer was the owner of the offending vehicle and thus liable to pay compensation under the Act. In other words, the employer who has provided compassionate appointment can claim deduction of the salary of the dependent while calculating if he is liable to pay compensation under the Act, being the owner of the offending vehicle”. ii) National Insurance Company Limited vs. Rekhaben and others (2017) 13 SCC 547 , in which, in paras 18 and 19, it was held that:- “18. The facts of the case in Vimal Kanwar & Ors. vs. Kishore Dan are similar to the facts of the cases in hand. The contention in the said case was that the amount of salary receivable by the claimant appointed on compassionate ground was deductible from the amount of compensation which the claimant was entitled to receive under Section 168 of the Motor Vehicles Act, 1988. This Court rejected the said contention and observed as follows: "21. "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 the Motor Vehicles Act and any amount received on such appointment is not liable for deduction for determination of compensation under the Motor Vehicles Act." 19. In the case of Reliance General Insurance Company Limited vs. Shashi Sharma , this Court permitted the deduction of the amount receivable by the claimant under the scheme of the 2006 Rules framed by the State of Haryana which provided a grant of compassionate assistance by way of ex gratia financial assistance on compassionate grounds to the members of the family of a deceased government employee who died while in service/missing government employee. iii) Bhakra Beas Management Board vs. Kanta Aggarwal (Smt.) and others, (2008) 11 SCC 366 , in which, in para 13, it was held that:- “13. Learned counsel for the respondent supported the judgment and additionally submitted that appeal of respondent No.1 is pending. In normal course, when two appeals are directed against the common judgment, both the appeals should be heard by the same Bench of the High court. But we find that the High Court lost sight of the fact that the benefits which the claimant receives on account of the death or injury have to be duly considered while fixing the compensation. It is pointed out that respondent No.1 was getting Rs.4,700/- p.m. and a residence has been provided to her and actually the compassionate appointment was given immediately after the accident.” 7. The learned advocate for the appellants lastly submitted that the said amount of compensation awarded to the claimants is exorbitant and improperly carved out, without considering the fact that the job was given to Utkarsha. Additionally, the pension received by petitioner No.1 wife and other benefits received by the claimants were also not considered by the Tribunal while awarding the amount of compensation. It is therefore, prayed that the appeal be allowed. 8. The learned advocate for respondent Nos. 1 to 6 strongly opposed the appeal and submitted that the amount of compensation which has been granted by the Tribunal is not in accordance with the provisions of the Motor Vehicles Act. It has to be enhanced as per the law laid down by the Supreme Court in the cases of National Insurance Company Limited vs. Pranay Sethi and others, (2017) 16 SCC 680 and Sarla Warma (Smt.) and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121 on the points of deduction of personal expenses, selection of multiplier and reasonable amount of compensation on various counts. 9. 9. The learned advocate for respondent Nos.1 to 6 further submitted that the right of compassionate appointment is independent right. Learned advocate relied upon in the precedential law of Vimal Kanwar and others vs. Kishore Dan and others, (2013) 7 SCC 476 , in which, it was held that the salary receivable by the dependent-claimants upon the compassionate appointment due to the victim’s death does not come within the periphery of the Motor Vehicles Act to be termed as “pecuniary advantage” and therefore, not liable for deduction. He is also relying upon the precedential law of Sarla Verma (supra) , in which, it was held that the assessment of compensation, though involves certain hypothetical considerations, should nevertheless be objective. Justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication and fairness and uniformity in the decision making process and the decisions. Hence, expressing a grave concern over lack of uniformity and consistency among the decisions of Tribunals, held, when the factors/inputs as well as formula/legal principles are the same, consistency and uniformity, and not divergence and freakishness, should be the result of adjudication to arrive at just compensation. To arrive at uniformity and consistency in determination of compensation in cases of death, Tribunals are directed to follow the well settled steps as indicated in the said judgment. 10. The following points emerged for consideration:- I) Can amount of compensation be reduced on account of providing services/job to one of the claimant viz. Utkarsha, on compassionate ground ? II) Are the petitioners-claimants entitled for enhanced amount of compensation? 11. Perused the impugned judgment and award as well as the record and proceedings. 12. The main argument of the learned advocate for the appellants is that the job has been provided to one of the claimants viz. Utkarsha as per the policy of the Central Government and he is getting the salary. It is also submitted that other benefits like pension, gratuity, GIS etc. are also received by the claimants. The law on these two aspects is settled in National Insurance Company Limited vs. Birender and others, (2020) 11 SC 356, in para Nos. 2 and 4 held as under:- “2. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. are also received by the claimants. The law on these two aspects is settled in National Insurance Company Limited vs. Birender and others, (2020) 11 SC 356, in para Nos. 2 and 4 held as under:- “2. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependant on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meagre income between Rs.1,00,000 and Rs. 1,50,000 per annum. In that sense, they were largely dependant on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years. 4. The view so taken by the High Court is not the correct reading of the decision of three-Judge Bench of this Court in Reliance General Insurance Co. Ltd. v. Shashi Sharma for more than one reason. First, this Court was conscious of the fact that under Rule 5(2) of the 2006 Rules, the family pension receivable by the family would be payable, however, only after the period, during which the financial assistance is received, is completed. In that context, the Court clearly noted that the amount towards family pension cannot be deducted from the claim amount for determination of a just compensation under the Act. Further, the High Court has erroneously assumed that the family of the deceased would be entitled for family pension amount immediately after the death of the deceased employee. That is in the teeth of the scheme of the 2006 Rules, in particular Rule 5(2) thereof. The said Rules provide for financial assistance on compassionate grounds, as also, other benefits to the family members of the deceased employee and as a package thereof, Rule 5(2) stipulates that the family pension as per the normal Rules would be payable to the family members only after the period of delivery of financial assistance is completed.” 13. In the case of United India Insurance Co. In the case of United India Insurance Co. Ltd. vs. Patricia Jean Mahajan and Ors., (2002) 6 SCC 281 , it is held as under:- “The purpose to compensate the dependents of the victims is that they may not be suddenly deprived of source of their maintenance and as far as possible, they may be provided with the means as were available to them before the accident took place. It will be just and fair compensation. But in cases where the amount of compensation may go much higher than the amount providing the same amenities, comforts and facilities and also the way of life, in such circumstances also, it may be a case where, while applying the multiplier system, the lesser multiplier may be applied. In such cases, amount of multiplicand becomes relevant. The intention is not to over-compensate.” 14. The law laid down in above precedential law clarifies that the deduction on the point of receiving of other benefits like pension, insurance etc. is not permissible while granting compensation to the legal dependents of the deceased. When the dependency is proved, merely providing of a job to one of the claimant does not absolve the appellants from liability to pay compensation. It does not come within the periphery of the Motor Vehicles Act as held by Hon’ble Supreme Court in the case of Vimal Kumar (supra), relied upon by the learned advocate for the respondents-claimants The compassionate appointment is independent right of one of the family member of the public servant, who died in the harness. The precedential law submitted by the appellants particularly the judgment in the cases of Rajasthan State Road Transport Corporation vs. Danish Khan (supra), National Insurance Company Limited vs. Rekhaben and others (supra) and Bhakra Beas Management Board vs. Kanta Aggarwal (Smt.) and others, (supra), therefore in the different set of facts of this case are not helpful to the appellants. It is because in the case of Rajasthan State Road Transport Corporation vs. Danish Khan (supra), there is regulation No. 4(3) of the employees of the Corporation and such is not the case of these appellants that there are such Rules or policy. Further, at the time of accident, the claimants were depending on the income of deceased Madhukar. Therefore, the argument of learned advocate for the appellants is not acceptable in this regard. Only because one of the claimant viz. Further, at the time of accident, the claimants were depending on the income of deceased Madhukar. Therefore, the argument of learned advocate for the appellants is not acceptable in this regard. Only because one of the claimant viz. Utkarsha has got the job, all other claimants, who were dependent on the income of deceased Madhukar at the time of accident, cannot be deprived from the amount of compensation as per law laid down in the case of Vimal Kanwar and others vs. Kishore Dan and others (supra). It is because said judgment is not overruled by the judgment of Rajasthan State Road Transport Corporation vs. Danish Khan and Bhakra Beas Management Board vs. Kanta Aggarwal (Smt.) and others, ( cited supra ) on behalf of the appellants. Therefore, it is held that there is no substance in the ground of objections of the appeal in this regard. The impugned judgment and award is legal and correct with regard to the excluding/reduction of the amount of compensation on account of providing job to one of the claimant Utkarsha on compassionate ground. No interference is warranted in it. Hence, the point No. (I) is answered in negative. 15. The learned advocate for the claimants pointed out in his written arguments that the amount of compensation awarded to the claimants was not properly carved out. The 1/3rd amount deducted towards personal expenses is not legal and proper and the loss of future prospects was also not considered. He submitted that the amount of income tax should be deducted from annual salary of the deceased. He submitted that personal expenses of 1/4th amount can be deducted in view of the judgment in the case of National Insurance Company Limited Vs. Pranay Sethi (supra) and Sarla Warma (Smt.) and others vs. Delhi Transport Corporation and another (supra). He further pointed out that 30% amount must be added towards the future prospects. He therefore, submitted that the amount of compensation be enhanced by applying multiplier of 13 which is to be decided upon the basis of number of persons depending upon the income of deceased Madhukar. 16. The learned advocate for the appellants strongly objected to this argument. In her written arguments, as well as oral arguments she submitted that neither appeal nor cross objection has been filed and therefore, enhanced amount of compensation shall not be awarded. 17. 16. The learned advocate for the appellants strongly objected to this argument. In her written arguments, as well as oral arguments she submitted that neither appeal nor cross objection has been filed and therefore, enhanced amount of compensation shall not be awarded. 17. As far as the oral prayer for enhancing compensation amount is concerned, the law is well settled that filing of an appeal or the cross objection is not necessary as held in the case of Manager, National Insurance Co Limited vs. Nilesh Suresh Bhandari and others, (2022) 6 Mah LJ 521 18. After considering peculiar set of facts of this case and the law laid down in the cases of National Insurance Company Limited vs. Pranay Sethi (supra) and Sarla Warma (Smt.) and others vs. Delhi Transport Corporation and another (supra), this court found that the amount of compensation awarded by the Tribunal in the impugned judgment is neither legal nor correct and therefore, it deserves to be enhanced. 19. It is an admitted fact that the monthly salary of deceased Madhukar was Rs.14,786/- and the annual salary was Rs.1,77,432/-. After deducting the yearly income tax of Rs.7190/-, the balance amount comes to Rs.1,70,242/-. Considering the age of the deceased Madhukar at the time of accident that he was 48 years old, 1/4th amount has to be deducted towards his personal expenses, which yearly comes to Rs.42,560/- and after it is deducted the amount remains Rs.1,27,682/- which is yearly monetary loss of the petitioners/claimants. As far as loss of rise in income towards future prospects is concerned, considering the age of the deceased Madhukar, it would be proper to add 25% amount out of yearly loss towards loss of future prospects which comes to Rs.31,920/-. The amount of Rs.1,59,602/- is yearly loss of the petitioners. The proper multiplier of 13 is applicable to this case as per the age of the deceased Madhukar and the claimant No.1 etc. as well as the law laid down in National Insurance Company Limited s. Pranay Sethi (supra) and Sarla Warma (Smt.) and others vs. Delhi Transport Corporation and another (supra). The amount of compensation comes to Rs.20,74,826/-. 20. The claimants are also entitled for Rs.2000/- for loss of estate, Rs.50,000/- for loss of consortium (petitioner No.1), Rs.10,000/- for transportation of dead body of Madhukar and funeral expenses. Thus, the claimants are entitled for total amount of compensation of Rs.21,36,826/-. The amount of compensation comes to Rs.20,74,826/-. 20. The claimants are also entitled for Rs.2000/- for loss of estate, Rs.50,000/- for loss of consortium (petitioner No.1), Rs.10,000/- for transportation of dead body of Madhukar and funeral expenses. Thus, the claimants are entitled for total amount of compensation of Rs.21,36,826/-. It is just and fair compensation. It is also equitable and balanced amount of compensation. The Tribunal erred in awarding meager amount of compensation as held above. To this extent judgment and award of the Tribunal deserves to be set aside and modified. Hence, the point no. 2 is answered in the affirmative. 21. For the reasons discussed above, the arguments of the learned advocate for the appellants is not acceptable in this regard. The precedential law relied upon by learned advocate for the appellants is not helpful to them, hence it is not relied upon. The appeal deserves to be dismissed. The impugned judgment deserves to be partly set aside and modified. Hence, the following order:- ORDER : I. The first appeal is dismissed. However, the impugned judgment and award is modified as under:- The claimants are entitled for compensation amount of Rs.21,36,826/- instead of Rs.15,49,700/-, with interest at the rate of 9% p.a. on the enhanced amount of compensation, from the date of filing of the claim petition. II. The appellants are directed to deposit the enhanced amount of compensation within four weeks before the Tribunal alongwith the interest accrued thereon. III. The appeal is accordingly disposed of. IV. The record and proceedings be sent back. 22. The learned advocate for the appellants has pointed out the order dated 22.2.2010, whereby a stay to the execution of impugned judgment and award was granted by this Court. She prayed to continue that said stay order for eight weeks. It appears that the said stay was granted subject to depositing the amount under award. As per the directions of this Court the entire amount under award has been deposited. 23. The learned advocate for the respondent Nos. 1 to 6 submitted that he has filed an application for withdrawal of the amount under award bearing civil application No. 2755 of 2024. He submitted that only 50% amount is withdrawn. Therefore, there is no point in continuing the said interim stay granted by this Court, by order dated 22.2.2010. 24. 23. The learned advocate for the respondent Nos. 1 to 6 submitted that he has filed an application for withdrawal of the amount under award bearing civil application No. 2755 of 2024. He submitted that only 50% amount is withdrawn. Therefore, there is no point in continuing the said interim stay granted by this Court, by order dated 22.2.2010. 24. The appeal was heard at the fag end of the Christmas vacation and reserved for judgment. It is delivered from High Court, Bench at Aurangabad today. It will take some time to reach it at Nagpur. Then it will be uploaded which will take some time. 25. On perusal of the said order, as well as the application for withdrawal of the amount, it would be proper to allow the application for withdrawal of the said amount, with a specific direction that, the Registry shall pay that amount to the respondent Nos. 1 to 6 (original claimants) after four weeks from the date of uploading of this judgment and order on the official website of this Court. The stay granted by this court is continued for four weeks from the date of uploading of this judgment. 26. Civil application No. 2755 of 2024 is allowed, as held above and the Registry is directed to permit the claimants-respondent Nos. 1 to 6 to withdraw the entire amount of award deposited in this court with accrued interest thereon, after a period of four weeks from the date of uploading of this judgment on the official website of this Court.