Gauhati High Court
Charu Barman And Ors. vs Satya Narayan Jiwanram And Ors. on 27 May, 1998
Equivalent citations: 1999ACJ1341
Author: H.K.K. Singh
Bench: H.K.K. Singh
JUDGMENT
V.D. Gyani, Actg. C.J.
1. This appeal under Section 173 of the Motor Vehicles Act, 1988 arises out of judgment and award dated 19.9.1996 passed by Member, Motor Accidents Claims Tribunal, Kam-rup, Guwahati in M.A.C. Case No. 319 (K) of 1993.
2. It was on 1.1.1993 that Umacharan aged about 42, was returning home as usual from the C.P.W.D. Office, little knowing that he would be knocked down by a car ultimately putting an end to his life. He sustained severe head injuries and despite immediate and efficient medicare, as available in the city, he succumbed to the injuries on 4.5.1993 after prolonged treatment and hospitalisation, leaving behind his wife and three school going children. The appellants filed their claim, which was resisted by the respondents owner, insurer on the usual mechanical stereotyped objections with slender or no supporting facts. A plea of contributory negligence was also raised but without any attempt at substantiating the same, so much so, the driver of the offending vehicle who was a party, was not examined as a witness, as indeed no evidence was adduced as such by the respondents.
3. The learned Member, on the basis of the pleadings, framed the following issues:
(1) Whether the claim petition is maintainable?
(2) Whether the deceased died due to rash and negligent driving of the driver of the offending vehicle?
(3) To what relief the claimants are entitled?
4. As rightly noted by the learned Member, the evidence adduced by the appellants has remained unchallenged and the respondents even did not choose to be present either in person or through counsel to support the plea of contributory negligence. It does not rest with the trial court, the insurer having filed a caveat, did not choose to appear when this appeal was taken up for hearing. In fact on conclusion of arguments by the appellants' counsel, the appeal was marked CAV, thereafter learned Counsel for the respondent insurer appeared with a request to hear him which we granted despite the appeal marked as CAV. When the appeal was taken up again for hearing, counsel for the insurer was not there. We had no option but to fix it for judgment. In the later part of the day learned Counsel appeared craving for hearing, we had to tell him that it was with a view to accommodate him that indulgence was shown which he failed to avail, still, however, if he so desired should submit his arguments in writing. This is the way how a nationalised institution seeks to serve the lofty object of nationalisation of general insurance, act and comfort those in grief. Paras 9 and 10 of the Tribunal's judgment are worth noting in this regard.
5. The only point argued by the learned Counsel for the appellants, as indeed the only point that arises for consideration is whether the Tribunal was justified in allowing deduction of the salary which the dependant wife (appellant No. 1) would receive on account of employment given to her on compassionate grounds? Although it is purely a question of law, and may be allowed to be raised, the fact remains that the defendants-respondents had not raised any such specific plea, it was the learned Member who on his own, while dealing with issue to what reliefs the claimants were entitled, on an admission made by the appellant No. 1 in her statement, before the Tribunal that she had been temporarily appointed on compassionate grounds by the department where her husband was working, she was being paid Rs. 2,350 p.m., what the learned Member did, having calculated the annual dependency and applying the multiplier of 15, worked out the compensation at Rs. 3,95,640 making a further deduction of 20 per cent on account of imponderables, reduced the same to Rs. 3,16,512. So far so good, what follows thereafter is that the amount as calculated above, has been neutralized by the subsequent income of the wife who was temporarily appointed on compassionate grounds on a monthly salary of Rs. 2,350. What is surprising is that all the line of reasoning has been evolved in the name of equity. While learned Counsel for the insurer in his written submissions has supported fully the above reasoning, counsel for the appellants contended that it was wholly impermissible under the law to make any such deduction, as there was no relation between the accidental death of the husband and employment of his dependant wife.
6. Let us examine the question in the light of some leading judgments on the point vis-a-vis the object and the social philosophy behind the provisions of law, governing motor accident claims and compensation. Being a beneficent provision to provide timely help and succour to those injured in motor accidents or suffered bereavement on account of such accident, what should be the approach of the court? And even if one as the Tribunal appears to have gone by, it will have to be shown as to what is the nexus between the compassionate appointment and fatal accident?
7. A five judges Bench of this Court in Saminder Kaur v. Union of India, 1987 ACJ 7 (Gauhati), had occasion to consider the question, whether the defendants as legal representatives of the deceased who met with accidental death, receiving post-retiral benefits, such as, pension, gratuity, provident fund, the life insurance policy amount, family pension-whether such benefits were liable to be deducted from the amount of compensation? One of the questions posed before the Bench as Question No. 2 was:
If and when any amount due under a policy of insurance taken by the deceased can be deducted in such a case?
8. The Full Bench answering the question held that the wrongdoer cannot be permitted to take any advantage of these payments. The following passage from the judgment is worth noting:
When a Government servant retires, he becomes entitled to provident fund, pension and gratuity benefits. Provident fund or pension or gratuity are the deferred payments of satisfactory service, savings and contributions of the deceased employee. These amounts his family would have in any case been entitled to get whether the employee died a natural death or died in an accident. Therefore, they ought not to be taken into consideration for determining the amount of just compensation, as they cannot be termed as pecuniary benefits. As regards family pension, the widow of a Government employee would be entitled to pension under the service conditions. We do not think that it is benefit received by the widow and the wrongdoer should be allowed to take advantage of the family pension and gain by it.
9. The above judgment covers the whole gamut of case law on the point. A Division Bench of Madras High Court in A.P. Dorairaj v. State of Madras, 1974 ACJ 174 (Madras), dealing with similar question and referring to English judgments held as follows:
We hold that in the present case, the amounts paid by claimant's employer gratuitously should not be taken into account in assessing the damages. It is admitted that a sum of Rs. 7,000 has been so paid gratuitously by the company Heatly and Gresham Ltd. That amount cannot be deducted from compensation payable towards loss of salary. Therefore, we hold that the claimant is entitled to a sum of Rs. 7,000 towards loss of salary.
10. More recently, a Division Bench of the Kerala High Court in Geethakumari v. Rubber Board, 1994 ACJ 796 (Kerala), considering the earlier judgments of the various High Courts and the Supreme Court held as follows:
Therefore, it can be said that the right to get employment in the dying in harness scheme is a separate and distinct right which is available in the case of death of the employee due to natural reasons also. This is an additional ground to hold that the compensation payable in a motor accident cannot be reduced on account of the giving of employment to anyone of the legal representatives of the deceased.
Accordingly, we hold that no portion of the pension, insurance money, gratuity, provident fund or any gratuitous payment received by the legal representatives of a deceased employee can be deducted from the amount of compensation payable to them under the Motor Vehicles Act. So also the salary or any part thereof which may be payable to the widow for the employment given to her on compassionate grounds on account of her husband's death cannot be deducted from the compensation payable to her under the Motor Vehicles Act. No part of the income that the widow or other legal representatives may be getting from any business or profession, whether it is a continuation of the business of the deceased or a new business started by them, can be deducted from such compensation.
11. As already noted above, the learned Member of the Tribunal having taken into consideration the fact that the deceased was earning Rs. 3,297 per month and deducting 1/3rd for his personal expenses, determined the dependency at Rs. 2,198. The Tribunal also took into account the monthly salary of Rs. 2,350 of claimant No. 1 and observed that in view of this salary of Rs. 2,350 and the dependency being only Rs. 2,198, the claimant cannot claim anything on this count, and virtually neutralised the claim in view of the monthly salary earned by the appellant on account of her appointment on compassionate grounds, which as already discussed above, cannot be legally taken into account and adjusted towards the payment of compensation. The Tribunal's reasoning has to be found in paras 13 and 14 of the impugned judgment. Para 14 is noted below:
Now, there is no denial of the fact that the present income of the claimant No. 1, Charu Barman is directly related and contingent to the death of her husband, she would not have been entitled to such payment or earning had the death of her husband been not caused by the vehicular accident in question. So, under the dictation of the law of equity a court of reasons will have to take into account deduction for this benefit in order to deduce the just and proper compensation payable to the claimant. The annual income from salary of claimant No. 1 is Rs. 2,350 x 12 = Rs. 28,200. This amount is higher by Rs. 1,824 than the multiplicand in this case which is annually Rs. 26,376. Therefore, practically speaking the claimant will not be entitled to any amount other than the amount, due to loss of consortium, loss of amenities and loss of estate, etc., together with expenses incurred during treatment of victim before his death.
12. Without disturbing the calculations made by the Tribunal and accepting the total sum as worked out at Rs. 3,95,640 which is squared up to Rs. 4,00,000, out of which the Tribunal has awarded only Rs. 2,00,000 including the no fault award and interest at the rate of 12 per cent per annum. The deduction of Rs. 2,00,000 (Two lakh) on account of the claimant-appellant's income as an appointee on compassionate grounds having been held to be illegal, the same is to be added to the total compensation payable to the claimant-appellant. Accordingly, the total amount of compensation payable to the claimant-appellant comes to Rs. 4,00,000 recoverable jointly and severally from the respondents. The interest at the rate of 12 per cent per annum as fixed by the Tribunal is maintained. The respondents are directed to pay/deposit the amount within two months from the date of this judgment, failing which interest at the rate of 18 per cent per annum on unpaid amount shall be chargeable.
13. There are three minor claimants-appellants. To safeguard their interest it is further directed that the amount on payment, recovery or realisation shall be deposited in a nationalised bank and the claimant-appellant No. 1, the mother, natural guardian, shall be entitled to withdraw Rs. 50,000, the remaining amount shall be deposited in term deposit scheme of 60 months, interests earned thereon shall be paid to the appellant. It is open to them to approach this Court for any modification in the order, in case of any eventuality or urgent expenses required to be made.
14. The appeal is allowed in terms of the direction indicated above. Counsel's fee Rs. 2,500.