Gujarat High Court
Ramilaben Premjibhai Rohit vs Ronak Jagdishchandra Acharya on 10 December, 2021
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/FA/2505/2019 JUDGMENT DATED: 10/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2505 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA sd/-
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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RAMILABEN PREMJIBHAI ROHIT
Versus
RONAK JAGDISHCHANDRA ACHARYA
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2,3
for the Defendant(s) No. 2,5
MR CHIRAYU A MEHTA(3256) for the Defendant(s) No. 6
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3
RULE SERVED(64) for the Defendant(s) No. 1,4
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 10/12/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA) 1.0. As per the order passed of even dated in Civil Application No. 1 of 2021 in First Appeal No.2505 of 2019, the present appeal is taken up its final disposal on today.
2.0. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accident Page 1 of 10 Downloaded on : Wed Jan 12 08:58:08 IST 2022 C/FA/2505/2019 JUDGMENT DATED: 10/12/2021 Claims Tribunal (Auxi), Kheda at Nadiad dated 27.11.2018 in MACP No. 47 of 2012, the present appellants have preferred present appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act")./ 3.0. The following facts emerge from the record of this appeal:
3.1. The deceased was working as a Watchman in General Hospital, Nadiad and as per the salary slip at Exh.45 his gross salary was 17364/- per month based upon pay slip of September 2011. The accident occurred on 17.12.2011 at about 2 pm while deceased was traveling in Rickshaw bearing registration No. GJ-7-VW-2225. It is the case of the original claimants that the Rickshaw was being driven in slow speed and on the correct side of the road and at that moment, Honda City Car bearing Registration No.GJ-1-KF-
8868 came from behind and dashed with the Rickshaw, because of which, Rickshaw turned turtle and deceased sustained serious injuries and died on the spot. An FIR was lodged with the jurisdictional police station at Exh.52 and the present claim petition was filed under Section 166 of the Act claiming compensation of Rs.23 lakhs as compensation. The claimants examined herself at Exh.39 and was also examined one witness viz. Nathabhai Bhanabhai Pateliya, Administrative Officer, Class II, General Hospital at Nadiad at Exh.43 and also relied upon the plethora of documentary evidence, which are as under:
Page 2 of 10 Downloaded on : Wed Jan 12 08:58:08 IST 2022C/FA/2505/2019 JUDGMENT DATED: 10/12/2021 Exh.No. Particulars 52 Complaint 53 Panchnama of the vehicle car 54 Inquest Panchnama 55 PM Report 56 RC Book of Honda City Car 57 Insurance policy of Honda City Car 58 Death certificate of deceased Premjibhai 59 Village Form No.8-A 45 Pay slips of deceased Premjibhai 3.2. The Tribunal examined the claim petition based upon the ratio laid down by the Hon'ble Supreme Court in the case of Bimla Devi vs. HRTC reported in AIR 2009 SC 2819 and in the case of Parmeshwari Devi vs. Amir Chand reported in (2011) 11 SCC 635 and came to the conclusion that there was composite negligence and both the drivers of the vehicles were negligent. While considering the quantum of compensation that can be awarded, having examined pay slip at Exh.45 and deposition of Nathabhai Bhanabhai Pateliya, Administrative Officer, Class II, General Hospital at Nadiad at Exh.43, the Tribunal considered the fact that an amount of Rs.4 lakhs has been received as financial help, Rs.50,000/- as group insurance from the hospital where the deceased was working and that widow was receiving family pension of Rs.5290/- per month and therefore, the Tribunal came to the conclusion that the claimants are not entitled any amount under the head of future loss of income and following the judgment of the Hon'ble Supreme Court in the Page 3 of 10 Downloaded on : Wed Jan 12 08:58:08 IST 2022 C/FA/2505/2019 JUDGMENT DATED: 10/12/2021 case of National Insurance Company Limited vs. Pranay Sethi reported in (2017) 16 SCC 680, awarded only Rs.70,000/- as compensation under the different conventional heads including funeral expenses. Being aggrieved and dissatisfied with the same, the present appellants have preferred the present appeal.
4.0. Heard Mr. Nishit Bhalodi, learned advocate for the applicant, Mr. Rathin Raval, learned advocate and Mr. Chirayu Mehta, learned advocate for the respective Insurance Companies. As the liability is not denied by both the Insurance Company, presence of other respondents are not necessary for deciding the present appeal.
5.0. The question which arise in this appeal as to whether the Tribunal is correct in coming to the conclusion that as the claimants have received an amount under the group insurance and that the widow of the deceased was receiving family pension at Rs.5290/-, the claimants are not entitled to any compensation under the dependency loss. It would be profitable to refer to the judgment of the Hon'ble Supreme Court in the case of Lal Dei vs. Himachal Road Transport reported in (2007) 8 SCC 319 and has held thus:
"4. It is contended by the learned counsel for the appellant that while calculating the dependency, the Motor Accidents Claims Tribunal as well as the High Court committed an error in deducting the family pension amount. We find that the submission made by the counsel for the appellant is correct. The Motor Accidents Claims Tribunal as well as the High Court could not nave deducted the amount of family pension given to the family while calculating the dependency of Page 4 of 10 Downloaded on : Wed Jan 12 08:58:08 IST 2022 C/FA/2505/2019 JUDGMENT DATED: 10/12/2021 the claimants. In Helen C. Rebello v. Maharashtra SRTC AIR 1998 SC 3191 : (1999) 1 SCC 90 this Court has specifically dealt with this question and said that the family pension is 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 than the accidental death. There is no co-relation between the two and therefore, the family pension amount paid to the family cannot be deducted while calculating the compensation awarded to the claimants. In view of this, the appeal is allowed. The order of deduction of the family pension is set aside. Accordingly, the appellants would be entitled for an amount of Rs. 10,27,000 as compensation with interest at the rate of 9% from the date of the filing of the petition."
5.1. The Hon'ble Supreme Court in the case of Vimal Kanwar and Ors vs. Kishore Dan and Others reported in (2013) 7 SCC 476 has observed thus:
18.The first issue is "whether Provident Fund, Pension and Insurance receivable by claimants come within the periphery of the Motor Vehicles Act to be termed as "Pecuniary Advantage" liable for deduction."
19.The aforesaid issue fell for consideration before this Court in Helen C. Rebello (Mrs) and others vs. Maharashtra State Road Transport Corporation & Anr.
reported in (1999) 1 SCC 90. In the said case, this Court held that Provident Fund, Pension, Insurance and similarly any cash, bank balance, shares, fixed deposits, etc. are all a "pecuniary advantage" receivable by the heirs on account of one's death but all these have no correlation with the amount receivable under a statute occasioned only on account of accidental death. Such an amount will not come within the periphery of theMotor Vehicles Actto be termed as "pecuniary advantage" liable for deduction. The following was the observation and finding of this Court:
"35. 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, Page 5 of 10 Downloaded on : Wed Jan 12 08:58:08 IST 2022 C/FA/2505/2019 JUDGMENT DATED: 10/12/2021 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 than the accidental death. No correlation 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 the insured contributes in the form of premium. It is receivable even by the insured if he lives till maturity after paying all the premiums. In the case of death, the insurer indemnifies to pay the sum to the heirs, again in terms of the contract for the premium paid. Again, this amount is receivable by the claimant not on account of any accidental death but otherwise on the 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 correlation 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 a similar and same plane having nexus, inter se, between them and not to which there is no semblance of any correlation. The insured (deceased) contributes his own money for which he receives the amount which has no correlation to the compensation computed as against the tortfeasor for his negligence on account of the 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 the 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 Page 6 of 10 Downloaded on : Wed Jan 12 08:58:08 IST 2022 C/FA/2505/2019 JUDGMENT DATED: 10/12/2021 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.
20.The second issue is "whether the salary receivable by the claimant on compassionate appointment comes within the periphery of theMotor Vehicles Act to be termed as "Pecuniary Advantage" liable for deduction."
21.Compassionate appointment" can be one of the conditions of service of an employee, if a scheme to that effect is framed by the employer. In case, the employee dies in harness i.e. while in service leaving behind the dependents, one of the dependents may request for compassionate appointment to maintain the family of the deceased employee dies in harness. This cannot be stated to be an advantage receivable by the heirs on account of one's death and have no correlation with the amount receivable under a statute occasioned on account of accidental death. Compassionate appointment may have nexus with the death of an employee while in service but it is not necessary that it should have a correlation with the accidental death. An employee dies in harness even in normal course, due to illness and to maintain the family of the deceased one of the dependents may be entitled for compassionate appointment but that cannot be termed as "Pecuniary Advantage" that comes under the periphery of Motor Vehicles Act and any amount received on such appointment is not liable for deduction for determination of compensation under the Motor Vehicles Act.
5.3. The Hon'ble Supreme Court in the case of Sebastiani Lakra and Ors vs. National Insurance Company Limited reported in (2019) 17 SCC 465 has observed thus:
"11. The Indian courts have consistently followed the multiplier system while assessing compensation and the judgment of this Court in Sarla Verma (supra) has been reiterated by a Constitution Bench of this Court in Pranay Sethi (supra) in so far as choice of multiplier is concerned.
12. The law is well settled that deductionscannot be allowed from the amount of compensation either on account of insurance, or on account of pensionary benefits or gratuity or grant of employment to a kin of the deceased. The main Page 7 of 10 Downloaded on : Wed Jan 12 08:58:08 IST 2022 C/FA/2505/2019 JUDGMENT DATED: 10/12/2021 reason is that all these amounts are earned by the deceased on account of contractual relations entered into by him with others. It cannot be said that these amounts accrued to the dependents or the legal heirs of the deceased on account of his death in a motor vehicle accident. The claimants/dependents are entitled to 'just compensation' under the Motor Vehicles Act as a result of the death of the deceased in a motor vehicle accident.Therefore, the natural corollary is that the advantage which accrues to the estate of the deceased or to his dependents as a result of some contract or act which the deceased performed in his life time cannot be said to be the outcome or result of the death of the deceased even though these amounts may go into the hands of the dependents only after his death."
5.4. The Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Birendra And ors reported in (2020) 11 SCC 356 has observed thus:
21. Be that as it may, the Tribunal, for excluding the amount received by the deceased as family pension due to demise of her husband, had noted in paragraph 26, as under:
"26. Learned counsel for the claimants further requested that about to family pension being drawn by the deceased also be calculated for the purpose of assessing the compensation. This contention and assertion of learned counsel for the claimants does not carry any conviction with the Tribunal because the deceased was getting family pension in her own right as the widow of the deceased and cannot be termed as her income for the purpose of computing the amount of compensation."
The High Court, without reversing the said finding, proceeded to include the amount of Rs.7,000/ per month received by the deceased as pension amount after demise of her husband. We are in agreement with the view taken by the Tribunal and for the same reason, have to reverse the conclusion recorded by the High Court to include the said amount as loss of dependency. That could not have been taken into account, as the same was payable only to the deceased being widow and not her income as such for the purpose of computing the amount of compensation .
Page 8 of 10 Downloaded on : Wed Jan 12 08:58:08 IST 2022C/FA/2505/2019 JUDGMENT DATED: 10/12/2021 5.5. Even the Division Bench of this Court in the case of National Insurance Company vs. Nainaben wd/o Decd. Bhupendra Kanaiyalal Shah reported in 2016 ACJ 253 has held that while computing dependency of the original claimants, the family pension amount is not to be deducted. We find that the Tribunal has not dealt with such important aspect while deciding the claim petition.
6.0. The certified copies which were provided by the learned counsel appearing on behalf of the respective parties clearly shows that the pay slips were brought on record, Administrative Officer was examined and over and above same, the deceased was a government servant. Hence, there is hardly any dispute as regard the authenticity of pay slip at Exh.45. Following ratio laid down by the Hon'ble Supreme Court in the case of Vimal Kanwar and Ors (supra), the finding arrived at by the Tribunal that as family pension is getting and financial aid has been received, the claimants are not entitled to any compensation under the future prospective income, is incorrect. We also find that though the evidence was there, the Tribunal has not even examined whether what was the source of financial help as well as family pension. Even learned counsel for the Insurance Company did contend before this Court that whatever is payable as future loss of income out of said amount of financial help of Rs.4 lakhs and Rs.50,000/- as group insurance is deductible. In absence of any discussion of the same and without appreciating that what was the Page 9 of 10 Downloaded on : Wed Jan 12 08:58:08 IST 2022 C/FA/2505/2019 JUDGMENT DATED: 10/12/2021 source of such financial help and whether such financial help was exaggeration or under some scheme of the government or contribution of the deceased is not at all examined. The Tribunal has wrongly assumed that as the family pension is being received no compensation under the head of loss of dependency can be arrived at.
7.0. The proposition put forward by the Tribunal is being erroneous, we deem it fit to quash and set aside the impugned judgment and award and remit back the proceedings of Claim Petition No. 47 of 2012 back to the Tribunal at Nadiad. The District Judge who is Chairman of the Motor Accident Claims Tribunal, Nadiad at Kheda is requested to give utmost priority to the proceedings as accident is of the year 2011 and claim petiiton was filed in the year 2012 and rehear the parties from the stage of argument and dispose of the claim petition and pass fresh denovo judgment and award as early as possible but not later than 31.3.2022. Learned counsel for the respective parties , more particularly, claimants have assured this Court that claimants shall cooperate with the Tribunal in disposal of the claim petition within time as provided by this Court in the present order. Appeal is disposed of accordingly.
sd/-
(R.M.CHHAYA,J) sd/-
(MAUNA M. BHATT,J) KAUSHIK J. RATHOD Page 10 of 10 Downloaded on : Wed Jan 12 08:58:08 IST 2022