Andhra HC (Pre-Telangana)
State Of A.P. And Anr. vs K. Pushpalatha And Ors. on 5 September, 2006
Equivalent citations: IV(2006)ACC592, 2007ACJ2038, 2006(5)ALD614, 2006(5)ALT789
Author: G. Chandraiah
Bench: G. Chandraiah
JUDGMENT G. Chandraiah, J.
1. Heard both the Counsel.
2. Since both the appeals arise out of same accident and the appellant - State of A.P. is common in both the appeals and also the issued raised is common, both the appeals are being disposed of by this common judgment.
3. CMA No. 3171/199 is filed by the State aggrieved by the order dated 5-7-1999 passed by the Court of I Additional District Judge-cum-Motor Accidents Claims Tribunal, Kurnool in M.V.O.P. No. 423/1995. CMA No. 68/2000 is filed against the order dated 5-7-1999 passed by the same Tribunal in M.V.O.P. No. 424/1995.
4. The facts with regard to deceased in both the claim petitions dying in the accident on 29-9-1993 due to the rash and negligent driving of the lorry bearing No. AP.M. 2087 and the quantum of compensation granted in both the O.Ps. by the Tribunal, is not under dispute. The two fold contention of the Counsel for the appellant - State is that as the widow of the deceased in M.V.O.P. No. 423/1995 and the son of the deceased in M.V.O.P. No. 424/1995 were provided with employment on compassionate grounds, the claimants who are the dependants of the deceased are not entitled for any compensation and in the alternative if the Court comes to the conclusion that the claimants are entitled to compensation, the amounts granted under ex gratia and the group insurance etc., shall have be deducted from the compensation awarded by the Tribunal.
5. In order to advert to the above grounds raised by the Counsel for the appellant-State it is necessary to be noticed that the liability of the State to pay compensation to the victim or is dependants is due to the motor accident caused by its employee and it is a tortuous liability. The Tribunal in the claim petition filed under Section 166 of the Motor Vehicles Act, 1988 has to adjudicate whether the accident occurred due to rash and negligent driving of the driver of the vehicle responsible for the accident and if it is found in the affirmative, awards compensation. Further the payment of ex gratia or some such amount either by the employer or the Government or any such organization, though not a statutory obligation, is out of humanitarian grounds and benevolence and taking the services rendered by the deceased and it forms the social responsibility of the employer or the Government in a welfare State. Similarly the payment of the group insurance or the provident fund or any amount of such nature, is from out of the mandatory contribution and savings made by the deceased to support his family in the event of any eventuality and to support his life and his dependants after retirement from service. The savings and contributions are to be made in accordance with the rules governing the service conditions and they are mandatory and the employee is left with no option. Therefore both the compensations i.e., awarded by the Tribunal and the payments made under ex gratia, provident fund, group insurance etc., operate in different fields and they are governed by different set of rules with different objects and the entitlement of compensation under the latter, would not disentitle the claimants from receiving the former. Coming to the aspect of providing employment under compassionate grounds is concerned, it is to be seen that it may be one of the conditions of service to provide employment to one of the eligible dependants of the deceased who died in harness, as the dependants lost their sole bread earner. Furthermore, the salary paid to the employee who was appointed on compassionate grounds is towards the services rendered by him/her and it is not compensation or any charity. Therefore the grounds raised by the Counsel for appellant - State are not tenable and merits only for rejection and the Tribunal below has rightly considered these aspects.
6. A Division Bench of this Court in Andhra Pradesh State Road Transport Corporation v. G. Jana Bai 2002 ACJ 502, held as under:
13. ...However, in the instant case, the claimants are not the injured persons but they are the dependants of the deceased who died in a motor accident on account of rash and negligent driving of the bus by the driver of the appellant. This is not the case where there is no loss of earning capacity of the injured but this is a case of death on account of rash and negligent driving of the appellant's bus for which the claimants being the legal representatives of the deceased are entitled for just and reasonable compensation. Therefore, the mere fact of the wife of the deceased gainfully employed on compassionate ground cannot be a ground for awarding less compensation though the claimants are entitled for more compensation. We therefore, reject the submission of the Counsel for the appellant in this regard having regard to the view taken by us.
7. A learned Single Judge of the Delhi High Court in New India Assurance Co. Ltd. v. Angoori Devi 1987 ACJ 942, held as under:
4. It is then said that on compassionate grounds the widow Angoori Devi was given employment by the N.C.E.R.T. and this fact has been ignored by the Tribunal. This contention also has no merit. The amount of compensation paid is due to the tortuous liability and has nothing to do with the employment given to the members of the family on compassionate grounds.
8. A Division Bench of the Madhya Pradesh High Court in Laxmi Devi Dwivedi v. State of Madhya Pradesh 2005 ACJ 106, also took the view that deduction in compensation on the ground that widow of the deceased is given employment on compassionate grounds, is not permissible.
9. A learned Single Judge of this Court in A. Lakshmi v. Arjun Associated Pvt. Ltd. , considering the object of the Provident Fund Act as well as the employees insurance scheme vis-a-vis the claim made under the Motor Vehicles Act, 1988, in the light of the judgment of the Apex Court in Helen C. Rebello v. Maharashtra State Road Transport Corporation 1999 ACJ 10 (SC), held as under:
21. From the above discussion it is seen that the provident fund contributions form part of the salary payable to the employee, It is a case of compulsion that every employee has to contribute to this fund, to save something for his peaceful retried life or to leave something to his dependants if any untoward incident takes place. If it is not made compulsory it is not known whether the employee will contribute to that fund or not. Hence, I feel that the provident fund contribution forms part of the salary payable by the employer to his or its employee and while fixing compensation under the Motor Vehicles Act, the same cannot be deducted.
22. On the same analogy, the amounts saved under Group Insurance Scheme also cannot be deducted.
24. ...If a victim involved in the road accident is disabled or his legal heirs in case of his death receives any other amounts under the schemes, wholly saved out of his own earnings cannot be treated as a payable benefit on account of accidental death. As a matter of fact, the payment of amounts under this scheme will be only accelerated because of the incapacity of the employee to work, but they have no nexus to the compensation payable under the provisions of the Motor Vehicles Act which is a statutory benefit conferred on the victim of the accident on the pretext that the loss suffered by him or family members have to be reasonably compensated.
10. A learned Single Judge of the High Court of Bombay in Bishansing Thakursingh v. Nasira Kadar Shaikh 2003 ACJ 1458, relying on the judgment of the Apex Court in Helen C. Rebello 's case (supra) held as under:
18. ...From the passage quoted above from the judgment of the Apex Court in Helen C. Rebello's case (supra), the order passed by the learned Judge in deducting the amount from total compensation will have to be interfered with. Considering the ratio laid down by the Supreme Court in Helen C. Rebello's case (supra) and relying on the said dictum, I am of the view that no deductions from the compensation that is to be awarded in case of motor accident are permissible. As per the Apex Court in Helen's case has considered these aspects and held that the amount which was received from other sources such as insurance, provident fund amount cannot be deducted. As per provident fund and insurance, one has to contribute some amount in order to get benefit in future. Therefore, these two deductions which are made by the learned Members of the Tribunal cannot be deducted from the total compensation, i.e., determined by the Tribunal. Now the further question remains is to consider about the ex gratia payment made by the employer to the heirs of the deceased Karmarkar. In fact, employer is not under any statutory obligation to make ex gratia payment on account of untimely death of the employee. Ex gratia payment made to the heirs of the deceased is based on the principle of compassion looking at the service that is rendered by the deceased employee. On this background, employer if makes ex gratia payment, that amount received by the heirs cannot be deducted from the compensation that is determined under the provisions of Section 110-B of the Motor Vehicles Act. Considering the ratio laid down by the Supreme Court in Helen's case extending further and applying it to the payments made by the employer or by any other social organization as ex gratia payment, cannot be a part of compensation determined by the Tribunal under the Motor Vehicles Act. Such deductions are impermissible....
11. In view of the above judgments it is clear that providing of employment to any one of the eligible dependants of the deceased, who dies in harness due to the motor accident cannot be taken as a ground to deny the compensation awarded by the Tribunal under the Motor Vehicles Act after adjudicating that the accident occurred due to rash and negligent driving of the driver of the vehicle involved in the accident. Similarly payment of ex gratia by the employer or the Government and payment of amounts viz., provident fund, group insurance or any amounts of such nature, which are contributed by the deceased because of his mandatory service conditions cannot be deducted from the compensation granted by the Tribunal under the Motor Vehicles Act, 1988.
12. In both the appeals the State has raised grounds stating that the Tribunal below is in error in granting compensation under Section 140 of the Motor Vehicles Act, though the claim petition is filed under Section 166 of the Act. This ground is totally absurd and is drafted without proper care, inasmuch as the Tribunal granted compensation under Section 166 of the Act after holding that the accident occurred due to rash and negligent driving of the driver of the lorry belonging to the appellant-State.
13. For the foregoing reasons, I do not find any merit in the appeals and they are accordingly dismissed. No costs.