Calcutta High Court (Appellete Side)
Binapani Ghosh & Ors vs The New India Assurance Company Limited ... on 3 April, 2013
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
1
03.04.2013. F.M.A. 639 of 2009
dc.
Binapani Ghosh & Ors.
versus
The New India Assurance Company Limited & Anr.
Mr. Amit Ranjan Roy
... For the Claimants/Appellants.
Mr. K. K. Das
... For the Respondent No.1/Insurance Company.
This miscellaneous appeal is directed against the judgement and/or award dated 28th July, 2008 passed by the learned Motor Accident Claims Tribunal, Fast Track, 2nd Court, Paschim Medinipur in M.A.C. Case No. 227 of 2006 at the instance of the claimants/appellants.
The claim-petition filed under Section 166 of the Motor Vehicles Act by the claimants due to accidental death of the victim was allowed by the learned Tribunal in part.
Since the entire claim of the claimants was not allowed by the learned Tribunal, they felt aggrieved. Hence the instant appeal was filed.
Findings of the learned Tribunal regarding the cause of death of the victim due to rash and negligent driving of the offending vehicle being registration No.MH-14E/6528 (Truck) by its driver on 17th January, 2000 remains unchallenged. Findings of the learned Tribunal regarding coverage of the offending vehicle under a policy of insurance issued by the 2 concerned Insurance Company also remains unchallenged. Thus the entitlement of the claimants to get compensation and the liability of the Insurance Company to pay such compensation to the claimants on account of such accidental death of the victim is not an issue in this appeal. The dispute involved in this appeal relates to the correctness in the calculation of compensation payable to the claimants.
Let us now consider as to how far the learned Tribunal was justified in assessing the compensation amount payable to the claimants at Rs.1,06,380/- in the instant case.
Admittedly the victim was a retired school teacher. He used to get pension of Rs.4,844/- per month. Though the claimants claimed that the deceased had another source of income from business, but the claimants ultimately failed to prove that the victim had any business and he used to earn anything from his said business.
As such, we are required to proceed on the basis that the income of the deceased at the time of his death was Rs.4,844/- which he used to get on account of his pension only.
Undisputedly after the death of the victim, the widow has been receiving half of the pension amount which her husband used to receive during his lifetime towards family pension as a condition of service which her husband rendered to his employer during the tenure of his employment.
3The learned Tribunal held that since the widow is receiving family pension after the death of her husband, the amount of family pension which she is receiving is required to be adjusted while ascertaining the loss of dependency of the widow upon the death of her husband. The learned Tribunal thus computed the compensation payable to the claimants by taking into consideration 50% of the pension of her husband and by deducting 1/3rd therefrom towards his personal and living expenses and further applying multiplier of 5 to the actual loss of dependency of the claimants.
Since admittedly the deceased at the time of his death was above 60 years, multiplier of 5 was correctly chosen by the learned Tribunal in the instant case.
Now we will have to examine as to whether the assessment of compensation on the basis of 50% of pension of the deceased can be accepted in the facts of the instant case.
Mr. Das, learned advocate appearing for the Insurance Company has supported the judgement and/or award passed by the learned Tribunal by placing strong reliance upon the judgement of the Hon'ble Supreme Court in the case of Gobald Motor Service Ltd. & Anr. Vs. R.M.K. Veluswami & Ors. reported in AIR 1962 SC 1 wherein it was held that while assessing the damages which the claimants suffered, the actual pecuniary loss of each individual entitled to sue can only be ascertained by balancing, on the one hand, the loss to him of the future pecuniary benefit, and, on the other any pecuniary advantage which from whatever source comes to him by reason of his death.
4By referring to the said decision of the Hon'ble Supreme Court, Mr. Das submits that if the said principle is applied in the instant case, then it goes without saying that the family pension which the widow is receiving after the death of her husband should be taken into consideration while ascertaining the actual loss of dependency of the claimants on account of accidental death of her husband.
Mr. Roy, learned advocate appearing for the claimants/appellants refutes such submission of Mr. Das by referring to a decision of the Hon'ble Supreme Court in the case of Mrs. Helen C. Rebello & Ors. Vs. Maharashtra State Road Transport Corpn. & Anr. reported in AIR 1998 SC 3191 wherein the Hon'ble Supreme Court elaborately discussed as to why the principle which was laid down by the Hon'ble Supreme Court in the earlier decision in the case of Gobald Motor Service Ltd. (supra) cannot be applied in case of assessment of compensation under the Motor Vehicles Act.
By placing strong reliance upon the said decision of the Hon'ble Supreme Court, Mr. Roy invites us to reassess the compensation payable to the claimants in the light of the decision of the Hon'ble Supreme Court in the case of Mrs. Helen C. Rebello (supra).
In this context, we have considered both the judgements of the Hon'ble Supreme Court minutely.
We find that the decision which was given by the Hon'ble Supreme Court in the case of Gobald Motor Service Ltd.
5(supra) was a case where damages by way of compensation was claimed under Fatal Accidents Act, 1855. A guideline was prescribed in the said decision as to how the pecuniary loss which the claimants sustained can be ascertained on the death of the victim. The concept of payment of just compensation was unknown in Fatal Accidents Act. The concept of giving just compensation to the claimants under the Motor Vehicles Act was introduced for the first time in Motor Vehicles Act, 1939. The said concept of giving just compensation to the claimants was in fact borrowed in the present Act of 1988 from the earlier Motor Vehicles Act of 1939. Section 166 of the Motor Vehicles Act of 1988 provides for grant of just compensation to the claimants. What amounts to "just compensation" has been elaborately discussed by the Hon'ble Supreme Court in its subsequent decision in the case of Mrs. Helen C. Rebello (supra). The relevant part of the said decision is set out hereunder :
"33. So far as the general principle of estimating damages under the common law is concerned, it is settled that 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 accrued 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. Thus, this has to be interpreted in the light of the provisions of the Motor Vehicles Act, 1939. It is very clear, to which there could be no doubt that this Act delivers compensation to the claimant only on account of accidental injury or death, not on account of any other death. Thus, the 6 pecuniary advantage accruing under this Act has to be deciphered, co-relating with the accidental death. The compensation payable under the Motor Vehicles Act is on account of the pecuniary loss to the claimant by accidental injury or death and not other forms of death. If there is natural death or death by suicide, serious illness, including even death by accident, through train, air flight not involving motor vehicle, would not be covered under the Motor Vehicles Act. Thus, the application of general principle under the common low of loss and gain for the computation of compensation under this Act must co-relate to this type of injury or deaths, viz., accidental. If the words 'pecuniary advantage' from whatever source are to be interpreted to mean any form of death under this Act it would dilute all possible benefits conferred on the claimant and would be contrary to the spirit of the law. If the 'pecuniary advantage' resulting from death means pecuniary advantage coming under all forms of death then it 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 claimant by the deceased and the intentions of the legislature. By such an interpretation the tortfeasor in spite of his wrongful act or negligence, which contributes to the death, would have in many cases no liability or meagre liability. In our considered opinion, the general principle of loss and gain takes colour of this statute, viz., the gain has to be interpreted which is as a result of the accidental death and the loss on account of the accidental death. 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 7 the accidental death and not other form of death. The constitution of the Motor Accidents Claims Tribunal itself under Section 110, is as the Section states;
"........... for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to ........."
The question as to whether the family pension which the heirs of the deceased receive, can be taken into consideration while assessing the actual loss of dependency of the claimants, has also been discussed by the Hon'ble Supreme Court in the aforesaid decision in paragraph 36 which is set out hereunder :
"36. 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 then the accidental death. No co-relation 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 insured contributes in the form of premium. It is receivable even by the insured, if he lives till maturity after paying all the 8 premiums, in the case of death insurer indemnifies to pay the sum to the heirs, again in terms of the contracts for the premium paid. Again, this amount is receivable by the claimant not on account of any accidental death but otherwise on 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 co-relation 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 similar and same plane having nexus inter se between them and not to which, there is no semblance of any co-relation. The insured (deceased) contributes his own money for which he receives the amount has no co-relation to the compensation computed as against tortfeasor for his negligence on account of 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 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."
On consideration of the aforesaid decision of the Hon'ble Supreme Court, we come to the conclusion that since the family pension was not receivable by the widow as a benefit 9 arising out of the accidental death of her husband, the amount of family pension which the widow is receiving cannot be taken into consideration for ascertaining the actual loss of dependency of the claimants on the death of the deceased.
Thus, we hold that the learned Tribunal was not justified in ascertaining the actual loss of dependency of the claimants by taking into consideration the family pension amount which the wife is receiving after the death of her husband.
We thus propose to recalculate the compensation amount by taking into account the actual loss of dependency of the claimants with reference to the amount of money which the deceased used to contribute to his family during his lifetime.
The victim admittedly used to earn a sum of Rs.4,844/- on account of pension. If 1/3rd is deducted from his total income on account of his personal and living expenses from such pension amount, then the actual loss of dependency of the claimants will be Rs.3,230/- per month. If the said loss of dependency of the claimants of Rs.3,230/- is multiplied by 12, then the annual loss of dependency of the claimants will be Rs.38,760/-.
Considering the age of the deceased at the time of his death as 60 years, we propose to apply the multiplier of 5 in the instant case. Thus, if the annual loss of dependency of Rs.38,760/- is multiplied by 5, then the actual loss of dependency of the claimants will be Rs.1,93,800/-. We further hold that in addition to the said sum of Rs.1,93,800/-, the 10 claimants are also entitled to get a further sum of Rs.9,500/- on account of statutory compensation. Thus, if the said sum of Rs.9,500/- is added to the said sum of Rs.1,93,800/-, then the total compensation payable to the claimants/appellants will be Rs.2,03,300/-.
Admittedly, the claimants have already received a sum of Rs.1,06,380/- in pursuance of the direction passed in the impugned award.
Accordingly, we direct the Insurance Company to pay the balance amount of compensation amounting to Rs.96,920/- to the claimants/appellants together with simple interest @6% per annum on the entire compensation amount from the date of presentation of the claim-petition before the Tribunal (i.e. on 13th April, 2006) up to the date of actual payment thereof. Such payment should be made to the claimants/appellants in equal share within thirty days from the date of communication of this order by following the same mode of payment as prescribed in the impugned award.
We further make it clear that the payment as per the direction of this Court will be made by the Insurance Company to the claimants by Account Payee Cheques to be deposited in the Tribunal.
The appeal is thus disposed of.
Let the lower court records be sent down to the court below immediately.
11Urgent photostat certified copy of this order, if applied for, be furnished to the applicant as early as possible.
(JYOTIRMAY BHATTACHARYA, J.) (MRINAL KANTI SINHA, J.)