Jammu & Kashmir High Court
Bajaj Allianz General Insurance Co. Ltd vs Gulzaid Begum And Others on 28 March, 2019
Equivalent citations: AIRONLINE 2019 J AND K 168
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU & KASHMIR
AT JAMMU
MA No. 77/2017
IA No. 01/2017
Date of order: 28.03.2019
Bajaj Allianz General Insurance Co. Ltd.
vs
Gulzaid Begum and others.
____________________________________________________
Coram:
Hon'ble Mr. Justice Sanjeev Kumar, Judge
Appearance:
For petitioner/appellant (s) : Mr. Baldev Singh, Advocate.
For respondent(s) : Mr. M.S. Hussain, Adv. for Nos. 1 to 6.
Nemo for respondent Nos. 7 and 8.
i) Whether approved for reporting in Law Journals etc.: Yes/No.
ii) Whether approved for publication in press : Yes/No.
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1. Bajaj Allianz General Insurance Company is in appeal against the award dated 04.11.2016 passed by the Motor Accident Claims Tribunal, Jammu (for brevity "the Tribunal") in Claim Petition No.305/C titled Gulzaid Begum and others Vs Bajaj Allianz General Insurance Company Ltd. and others. The Tribunal awarded a sum of Rs. 32,72,445/- alongwith interest @ 7.5 % per annum as compensation to the respondent Nos. 1 to 6 on account of death of one Abdul Qayoom.
CIMA No. 272/2013 Page 1 of 92. Briefly stated the facts leading to the filing of this appeal are :
A vehicular accident took place on 28.3.2012 near Tarakote Tota Wali Gali, tehsil Mendhar district Poonch involving Tata Sumo bearing registration No. JK12-4474. The accident was the result of rash and negligent driving by the driver of the offending vehicle. The deceased Abdul Qayoom was travelling with the driver of the offending vehicle and in the accident, he received fatal injuries to which, he later succumbed. The deceased left behind respondent No.1, his wife and respondent Nos. 2 to 6, his children as his legal heirs. Respondent Nos. 1 to 6 filed the claim petition before the Tribunal claiming compensation to the tune of Rs.50.00 lacs against the appellant and the respondent Nos. 7 and
8. The above petition was contested by all the respondents.
3. On the basis of pleadings of the parties, the Tribunal framed the following issues :
i) Whether an accident took place on 28.03.2012 at about 11.15 p.m. at Tarakota, Tota Wali Gali Tehsil Mendhar district Poonch by rash and negligent driving of the vehicle bearing registration No.JK12-4474 ( Tata Sumo) by its driver as a result of which deceased Abdul Qayoom Malik received fatal injuries? OPP
ii) If issue No.1 is proved in affirmative, whether petitioners are entitled to compensation, if so to what extent and from whom ? OPP
iii) Whether the offending vehicle was being driven at the time of the accident in violation of terms and conditions of policy of insurance and insurance company is not liable ?
OPR-1 CIMA No. 272/2013 Page 2 of 9
iv) Relief. OP.Parties.
4. Respondent Nos. 1 to 6 led their evidence and examined Harvind Singh, Constable as witness. The wife of the deceased, respondent No.1 Gulzaid Begum also entered the witness box to support her claim. The appellant-insurance company also examined the driver of the offending vehicle, respondent No.8 and produced the report of the ARTO Mumbai (Central) pertaining to the record of the driving licence of respondent No.8. The Tribunal, upon evaluation of the evidence on record and taking into consideration the rival contentions of the parties, allowed the claim petition to the extent of awarding a compensation of Rs. 32,72,445/-.
5. The appellant-insurance company is aggrieved and has assailed the award passed by the tribunal inter alia on the following grounds :
i) That the salary certificate has not been properly appreciated and no deduction regarding Income Tax has been made.
ii) That getting of full salary by way of family pension by the family of the deceased for seven years has not been considered by the learned tribunal.
iii) That the driving licence of the driver was not effective on the date of accident.
iv) That the learned tribunal has not considered the record properly available before it while passing the award impugned.
v) That the claim petition remained pending for about four years because of the negligence of the claimants but by the award impugned they are benefited by the interest as granted by the learned tribunal.CIMA No. 272/2013 Page 3 of 9
vi) That the learned tribunal has exceeded its jurisdiction in passing the award impugned.
6. Having heard the learned counsel for the parties and perused the record, I am of the view that the compensation awarded appears to be on higher side and, therefore, needs to be modified suitably.
7. It has come on record that the deceased was serving as permanent employee in the Police Department and was holding the post of Follower on the date of accident. He was receiving net monthly salary of Rs. 17,647/-.
8. Relying upon the judgment of the Hon'ble Supreme Court rendered in the cases of Raghuvir Singh Matolya & Others Vs Hari Singh Malviya & Others, 2009 ACJ (SC) 1580 and Sunil Sharma and others Vs. Bachiter Singh and others, 2011 ACJ 1441, the tribunal took monthly income of the deceased as Rs.17,373/-. Recorded date of birth of the deceased in the official record was found to be 12.4.1963 and, therefore, the deceased was found to be of the age of 49 years at the time of accident. The Tribunal thus, added 30% to the established income for the purposes of computing loss of future income/prospectus. Looking to the number of dependents left behind by the deceased, the income was further reduced by ¼ on account of personal expenses. The Tribunal applied the multiplier of 13 as per Sarla Verma's case and computed the compensation. The manner in which the compensation has been assessed by the tribunal, is in accord with the law settled in the cases of Sarla Verma and Pranay Sethi but what the Tribunal has erred in the instant case, is not taking into consideration the family pension @ CIMA No. 272/2013 Page 4 of 9 50% of the last pay drawn by the deceased which shall be payable to the family of the deceased for a period of ten years in terms of amendment in the J&K Civil Services Regulations,1956 by way of SRO 94 dated 15.4.2009. The Tribunal has referred to the judgment rendered by the Hon'ble Supreme Court in case of Mrs. Helen C. Rebell Vs Maharashtra State Road Transport Corporation, AIR 1998 Supreme Court 3191 but has not correctly appreciated its import. The Subsequent judgment in the case of Reliance General Insurance Company Ltd. vs Shashi Sharma and others, 2016 AIR(SC) 4465 has now settled position of law in this regard.
9. I have already considered this matter in detail in MA Nos.102/2013 and 101/2013 titled New India Assurance Co. Ltd. Vs Gulzara Bibi and others. Relevant paragraphs of the said judgment may be reproduced as under for facility of reference:
"9. This precisely is the issue which is debated by the learned counsel appearing for the parties before me. The tribunal has relied upon Mrs. Helen C. Rebello and Patricia Jean Mahajan(supra) to deny the claim for deduction raised by the appellant-insurance company, whereas, the appellant- insurance company is strongly banking upon the case of Bhakra Beas Management Board (supra). Both the decisions are rendered by the two judges' Bench of the Supreme Court. The apparent conflict of opinion between the Co-ordinate Benches of the Supreme Court was highlighted before the Supreme Court on behalf of Reliance General Insurance Co. Ltd. in the case of Reliance General Insurance Company Ltd. Vs. Shashi Sharma and ors. The Hon'ble Supreme Court after discussing the aforesaid judgments found that there was essentially no conflict in opinion of the Co- ordinate Benches which had decided the aforesaid cases. It was, thus, held that in the decision rendered in the case of Bhakra Beas Management Board(supra), the correctness of dictum in Mrs. Helen C. Rebello and Patricia Jean Mahajan(supra) had not been doubted at all. While discussing the principle expounded in Mrs. Helen C. Rebello's case(supra), Hon'ble Supreme Court in paragraph 16 of Shashi Sharma's case(supra), held thus:-
16. The principle discernable from the exposition in Helen C. Rebello's case (supra) is that if the amount " would be due to the CIMA No. 272/2013 Page 5 of 9 dependents of the deceased even otherwise", the same shall not be deductible from the compensation amount payable under the Act of 1988. At the same time, it must be borne in mind that loss of income is a significant head under which compensation is claimed in terms of the Act of 1988. The component of quantum of "loss of income", inter alia, can be "pay and wages" which otherwise would have been earned by the deceased employee if he had survived the injury caused to him due to motor accident.
If the dependents of the deceased employee, however, were to be compensated by the employer in that behalf, as is predicated by the Rules of 2006 - to grant compassionate assistance by way of ex-gratia financial assistance on compassionate grounds to the dependents of the deceased Government employee who dies in harness, it is unfathomable that the dependents can still be permitted to claim the same amount as a possible or likely loss of income to be suffered by them to maintain a claim for compensation under the Act of 1988.
In the aforesaid case, Hon'ble Supreme Court was confronted with the death of an employee of Haryana Government in the motor vehicular accident whose legal heirs were entitled to compensation from the Government equivalent to the salary last drawn by the deceased for a period of seven years in terms of Haryana Compassionate Assistance to the Dependants of the Deceased Government Employees, Rules 2006 (Rules of 2006 for short). Hon'ble Supreme Court after discussing Rule 5(i) which provided for payment of financial assistance to the family of the deceased employee equivalent to pay and allowances that was last drawn by the deceased employee in normal course without raising a specific claim for a specified period depending upon the age of the deceased employee at the time of his death, and straightening the law on the subject in paragraph 22 of the judgment held thus:-
"22. Indeed, similar statutory exclusion of claim receivable under the Rules of 2006 is absent. That, however, does not mean that the Claims Tribunal should remain oblivious to the fact that the claim towards loss of Pay and wages of the deceased has already been or will be compensated by the employer in the form of ex-gratia financial assistance on compassionate grounds under Rule 5 (1). The Claims Tribunal has to adjudicate the claim and determine the amount of compensation which appears to it to be just. The amount receivable by the dependants/claimants towards the head of pay and allowances in the form of ex- gratia financial assistance, therefore, cannot be paid for the second time to the claimants. True it is, that the Rules of 2006 would come into play if the Government employee dies in harness even due to natural death. At the same time, the Rules of 2006 do not expressly enable the dependants of the deceased Government employee to claim similar amount from the tortfeasor or Insurance Company because of the accidental death of the deceased Government employee. The harmonious approach for determining a just compensation CIMA No. 272/2013 Page 6 of 9 payable under the Act of 1988, therefore, is to exclude the amount received or receivable by the dependants of the deceased Government employee under the Rules of 2006 towards the head financial assistance equivalent to "pay and other allowances" that was last drawn by the deceased Government employee in the normal course. This is not to say that the amount or payment receivable by the dependents of the deceased Government employee under Rule 5 (1) of the Rules, is the total entitlement under the head of "loss of income". So far as the claim towards loss of future escalation of income and other benefits, if the deceased Government employee had survived the accident can still be pursued by them in their claim under the Act of 1988. For, it is not covered by the Rules of 2006. Similarly, other benefits extended to the dependents of the deceased Government employee in terms of sub-rule (2) to sub-rule (5) of Rule 5 including family pension, Life Insurance, Provident Fund etc., that must remain unaffected and cannot be allowed to be deducted, which, any way would be paid to the dependents of the deceased Government employee, applying the principle expounded in Helen C. Rebello and Patricia Jean Mahajan's cases (supra)"
It may be noted that decision of the Supreme Court in the case of Shashi Sharma's case (supra) is rendered by three judges Bench and is latest on the point of law.
10. From the aforesaid discussion and the position of law elaborately explained by the Supreme Court in Shashi Sharma's case (supra), following conclusions can be drawn:-
(i) The pecuniary advantage received by the legal heirs of the deceased employee which has no correlation to the accidental death is not deductible from computation of compensation under the Motor Vehicles Act. The pecuniary advantage resulting from a death other than a motor vehicular accident death like assets, movable, immovable, shares, bank accounts, cash and every amount receivable under any contract cannot be taken to be a pecuniary advantage which is liable to be deducted for computation of compensation payable to the legal heirs of the deceased under the provisions of the Motor Vehicles Act.
Similarly, the pecuniary advantage received by legal representatives of the deceased government employee like gratuity, pension, provident fund, etc. including the social security amount like LIC is the pecuniary advantage which is received by the legal representatives even in case of a death other than an accidental death caused in a motor vehicular accident. Such amounts which have no correlation with the death of the deceased in a motor vehicular accident are not required to be deducted or taken into consideration while CIMA No. 272/2013 Page 7 of 9 computing the compensation payable under the provisions of the Motor Vehicles Act.
(ii) Under the provisions of the Motor Vehicles Act, the amount of compensation payable to the legal heirs/claimants must be just, fair, adequate and reasonable and should not be a bonanza, largess or source of profit. It is true that the claimants would have been entitled to full salary for a period of seven years as per service rules governing the deceased, even if the deceased would have died due to natural death. Strictly speaking there may not be any correlation between the pecuniary advantage received by the legal heirs of the deceased employee equivalent to the salary for a period of seven years and the death of the deceased occurred in a motor vehicular accident but at the same time, while calculating the loss of income happened due to the death of the deceased in the motor vehicular accident, the fact that the legal heirs/claimants would receive full salary for a period of seven years and that there would be no loss of income during the said period cannot be ignored. Though the other benefits like family pension, LIC, provident fund etc. would remain unaffected and could not be allowed to be deducted in view of the principle laid down in Helen C. Rebello's case and Patricia Jean Mahajan(supra)."
10. In view of the aforesaid, I am in agreement with the learned counsel for the appellant that 50% of the last pay drawn by the deceased for a period of ten years deserves to be deducted from the total amount of the award. Since the tribunal has taken monthly salary of the deceased at Rs. 17,373/- as such 50% of the last pay received or receivable for ten years by the respondents-claimants would work out to Rs. 8686.50x12x10= Rs. 10,42,320/-. This amount is liable to be deducted from the amount awarded by the Tribunal on account of loss of dependence.
i) Loss of dependence = Rs. 26,42,445-10,42,380
= Rs. 16,00,065/-
ii) Funeral expenses = Rs. 15,000/-
iii) Loss of estates = Rs. 15,000/-
iv) Loss of spousal consortium = Rs. 40,000/-
CIMA No. 272/2013 Page 8 of 9
to respondent No.1.
v) Loss of parental consortium to
respondents 2 to 6 @ Rs.40000/
each 40000x5 = Rs. 2,00,000/-
----------------------------
Total = Rs. 18,70,065/-
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11. The award is accordingly modified and the appeal alongwith MP is disposed of in the above terms.
(Sanjeev Kumar) Judge Jammu:
28 .03.2019 RSB, Secy, CIMA No. 272/2013 Page 9 of 9