Calcutta High Court
Smt. Mousumi Hansda & Ors. vs Oriental Insurance Co Ltd. & Anr. on 19 June, 2000
Equivalent citations: 2001ACJ1375, (2000)3CALLT481(HC), 2001 A I H C 3316, (2001) 1 CAL LJ 236, (2001) 2 CIVLJ 476, (2001) 1 TAC 685, (2000) 3 CALLT 481, (2001) 1 ACC 540, (2001) 2 ACJ 1375
Author: S.B. Sinha
Bench: Satyabrata Sinha
JUDGMENT S.B. Sinha, J.
1.This appeal Is directed against a Judgment and award dated 28th April, 2000 passed by the learned Judge, Motor Accident Claims Tribunal, 4th Court, Alipore in M.A.C. No. 357 of 1997 under section 163A of the Motor Vehicles Act, whereby and whereunder a sum of Rs. 1,50,000/- was awarded for death of Copal Chandra Hansda which took place on 3.8.97.
2. The question which arises for consideration in this appeal is as to whether only because the appellant No. 1 has got service on compassionate ground in place of her deceased husband, the learned Tribunal was correct in awarding a lump sum amount of compensation of Rs.1,50,000/- or not.
3. Mr. Banik, learned counsel appearing on behalf of the appellant, has placed strong reliance upon a decision of the apex Court in Helan C. Rebello v. Maharashtra State Road Transport Corporation and another and submitted that the learned Tribunal is wrong in taking the factum of appointment on compassionate ground as relevant factor for the purpose of determination of amount of compensation. Strong reliance in this connection, has also been placed upon the following decisions:--
4. Sm. Sunder & Ors. v. Hem Stngh & Ors., reported In 1993 (2) AJR 173, A. Asrafv. Shaik Madar Sab & Ors. reported in 1993 (I) ACC 693, M/s. Tata Engineering & Locomotive Co. Ltd. v. Anantha Lakshmt, reported In 1995(1) TAC 602, Geetha Kumart & Ors. v. Rubber Board & Ors. reported in 1994 ACJ 796, KhashttDeviv. Amar Nath & Ors. reported In 1994 ACJ 873, Sukhl and Ors. v. Hem Singh & Ors. reported In 1994 ACJ 1024, Chant Barman & Ors. v. Satya Narayan Jtwan Ram & Ors. reported In 1998(2) TAC 505 as also a decision of KarnatoJca High Court in Lalttha & Anr. v. Dashanbhat Harbansh Blmt and Anr. reported In 2000 ACJ 200.
5. According to the learned counsel the learned Tribunal ought to have computed the amount of compensation in the following manner :
The Victim's salary was @ Rs. 6,649,75P. per month X 12 = 79,797.00 The victim's age is 45 years and the age of the petitioner No. 1 is 39 yrs. Multiplier would be 17 (79,797 X 17) = 13,56,549.00 Deduction of 1/3rd of Rs. 13,56,549/- is 4,52,183.00 9,04,366.00 Funeral expenses ... 2,000.00 Loss of consortium ... 5.000.00 Loss of Estate ... 2,500.00 Pain and Suffering ... 5,000.00 14,500.00 9,18,866.00 @ 12% Interest from 4.12.97 (2 & . gears) 2,75,659.80 Total Compensation ...
11,94,525.80
6. The learned counsel appearing on behalf of the respondent-insurance company, on the other hand submitted that amount of salary which have become payable by reason of appointment on compassionate ground is a relevant factor and the same should be taken into consideration for the purpose of determination of the total amount of compensation.
7. The question raised in this appeal in our considered opinion is no longer res integra.
8. What would be pecuniary advantage gained by way of an accidental death came up for consideration before the apex Court In Helen C. Rebello & Ors. v. Maharashtra State Road Transport Corporation & Anr. reported In . The apex Court upon considering various decisions as also the general principles of compensation in torts and further upon considering as what would be the just compensation as has been provided for under section 110B of the Motor Vehicles Act, 1939 which is parlmaterla with section 166 of the Motor Vehicles Act, 1998, held, :-
"So far as the general principle of estimating damages under the common law Is concerned, the pecuniary loss can be ascertained only by balancing on one hand, the loss to the claimant of the future pecuniary benefits that would have accused to him but for the death with the "pecuniary advantage" which from whatever source comes to him by reason of the death. In other words, it is the balancing of loss and gain of the claimant occasioned by the death. But this has to change its colour to the extent a statute intends to do. The compensation payable under the Motor Vehicles Act, 1939 is account of the pecuniary loss to the claimant by accidental injury or death and not other forms of death. Therefore, the application of the general principle under the common law of loss and gain for the computation of compensation under this Act must correlate to this type of Injury or death, viz., accidental death. If the "pecuniary advantage" resulting from death means pecuniary advantage coming under all forms of death then tt will Include all the assets movable, Immovable, shares, bank accounts, cash and every amount receivable under any contract. In other words, all heritable assets Including what is willed by the deceased etc. This would obliterate both, all possible conferment of economic security to the callmant by the deceased and the Intentions of the legislature. Thus, under the present Act, whatever pecuniary advantage is received by the claimant, from whatever source, would only mean which comes to the claimant on account of the accidental death and not other forms of death."
9. A bare perusal of the aforementioned discussions makes it clear that accidental death within the meaning of the Motor Vehicles Act, 1988, must be kept confined to a death occurred by reason of use of motor vehicle. A pecuniary advantage gained by the heirs and legal representatives of the deceased cannot thus be interpreted to mean pecuniary advantage resulting from accidental death. Death of an employee in harness, therefore, cannot be termed as "accidental death" within the meaning of the said provision. The learned Tribunal, therefore, in our opinion, completely erred in deciding the satd issue against the appellanls.
10. In Lalltha and Anr. v. Dashanbhat Hatibansh Bhat & Anr., reported in 2000 ACJ 200, a Division Bench of Karnataka High Court has laid down the law In the following terms :
"In our view, the Tribunal has gravely erred in denying the compensation under the head 'loss of dependency' to the appellant No. 1 because of _ her appointment on compassionate grounds in the place of the deceased. The Tribunal erred in recording a finding that the salary earned by the appeellant No. I would compensate for the loss of salary which was being earned by the deceased. Whatever salary she got after employment was In lieu of services rendered by her. The same does not mean that there was no loss of dependency. While the husband was earning she must have employed herself gainfully in the household work. Salary earned by the deceased was in lieu of the services rendered by him and because of his death loss was caused to the estate resulting in loss of dependency to the appellants. Salary earned by appeellant No. 1 was due to the work put in by her and could not be adjusted or treated as compensation for the loss of earnings of the deceased. Salary earned by appellant No. 1 could not be equated with the compensation she was entitled to on account of the death of the her husband."
11. Punjab and Haryana High Court also in Sunita Rant & Ors. v. Hardev Singh &. Ors.. reported in 1995 ACJ 1174 held:
"Giving of service on compassionate ground is again totally an irrelevant consideration while assessing the compensation under the Motor Vehicles Act. In our considered view the fact of starting or earning by any dependant member entitled to compensation is no ground to deprive him of the compensation for the loss caused by the delinquent or person liable to reimburse the claimant by way of compensation."
12. In similar terms, Gauhatl High Court in Chant Barman & Ors. v. Satya Narayan Jiwan Ram, & Ors,, reported in 1998(2) TAC 505 held that no deduction is permissible from the amount of compensation only because the heir of the deceased had been granted appointment on compassionate ground. Another aspect of the matter may also be taken note of. Even if it be held that the heirs and legal representatives had Independent source of income, the same by Itself would not have precluded them from filing an application for claim in terms of the provisions of the Motor Vehicles Act, a regards the accidental death of the victim. In Champa Sharma & Anr. v. H.P. State Etectrtctty Board & Ors.. reported in 1999 ACJ 883, a Division Bench of Hlmachal Pradesh High Court, has clearly held:
"A contention was raised on behalf of the respondent that the claimant No. 1. Champa Sharma, widow of the deceased is not entitled to any compensation inasmuch as she was not dependent on the deceased. According to the respondent Board, the said claimant Is herself employed as a draftsman with the State Electricity Board and drawing a salary of more than Rs. 3,000 per month and as such she cannot be said to be dependent on the deceased.
Be it stated that even though the claimant Champa Sharma may not be financially dependent on the deceased in view of her independent source of income, she being the window of the deceased is his natural legal heir and there has been a loss of estate to her consequent upon the death of her husband. Being a natural legal heir, she is entitled to claim compensation for the death of her husband."
13. We, therefore, answer the aforementioned question in favour of the appellants and against the respondents.
14. However, in this case, the claim petition was filed in terms of section 163A of the Motor Vehicles Act, 1988. Second Schedule appended to the said Act provides for the compensation to be paid. Maximum amount which can be taken into consideration for the aforementioned purpose has been stated to be Rs.40,000/-. Keeping in view the age of the victim, admittedly the multiplier which is to be applied in this case is 15. Thus, the total amount of compensation which would be payable would be Rs. 6,00.000/-. But from the said amount 1/3rd of the local income has to be deducted in terms of the note appended thereto. Apart from the aforementioned sum, the appellants would be entitled to a sum of Rs.2,000/- towards funeral expenses, Rs.5,000/-lowards loss of consortium and Rs. 2,500/- by way of loss of estate. Thus, the total amount of compensation payable to the appellants would be thus:
Total amount of compensation payable
-
Rs. 6,00,000/-
(a) Less 1/3rd of the aforesaid amount
-
Rs. 4,00,000/-
(b) Funeral expenses
-
Rs. 2,000/- (c) Loss of consortium - Rs. 5,000/- (d) Loss of estate - Rs. 2,500/- Total : Rs. 4,09,500/-
15. On the aforesaid amount, the appellants shall further be entitled to Interest at the rate of 12% from the date of filing of the application till the date of actual payment.
16. So far as the mode of disbursement of the amount is concerned, keeping in view the decision rendered in Aktart Begum alias Sayada Khatoon v. New India Assurance Co. Ltd. & Anr. (F.M.A.T. 1413 of 2000) disposed of today, the learned Tribunal would follow the decision of the apex Court in General Manager, Kemla Road Transport Corpn, v. Susamma Thomas, reported in 1994(1) ACJ 1 and other cases. The respondent may deposit the awarded amount within 8 weeks subject to adjustment of any sum that might have been deposited by it.
The appeal is thus disposed of.
Xerox certified copy of the order be supplied on priority basis.
H. Banerjl, J.
17. I agree.
18. Appeal disposed of.