Jammu & Kashmir High Court
Jagdish Singh And Others vs Kamla Devi And Others. on 7 December, 2017
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CIMA No.406/2014
MP Nos.588/2014 & 2/2017
And
Cross Appeal No.11/2017
Date of Judgment: 07 .12.2017.
Jagdish Singh and others v. Kamla Devi and others.
Coram:
Hon'ble Mr. Justice Sanjeev Kumar, Judge
Appearing counsel:
For the Appellant(s) : Mr. Hunar Gupta, CGSC.
For the Respondent(s) : Mr. R.K.Bhatia, Advocate.
i/ Whether to be reported in : Yes
Press/Media
ii/ Whether to be reported in : Yes
Digest/Journal
1. One Hayat Singh S/o Ram Singh R/o Village Kotkandai P.O. Chakisain District Pauri Garhwal, Uttarakhand, while traveling in Vehicle No.06D- 171718X, met with an accident at Tainspur within the jurisdiction of Police Station, Mendhar on 10.09.2007, when the vehicle rolled down into a gorge and said Hayat Singh died due to the grievous injuries sustained by him in the accident. Wife, minor daughter, son and mother of deceased Hayat Singh have filed a claim petition before the Motor Accidents Claims Tribunal, Jammu ( for brevity, "the Tribunal") seeking compensation for the death of Hayat Singh. From the pleadings of the parties, the Tribunal framed following issues:-
"1. Whether an accident took place on 10.09.2007 at Tainspur within the jurisdiction of P/S,Mendhar, Distt. Poonch by rash and negligent driving of offending vehicle No.06D-171718X by its driver respondent No.1, as a result of which deceased Hayat Singh received fatal injuries?---OPP
2. If issue No.1 is proved in affirmative whether petitioners are entitled to compensation, if so to what amount and from whom ?---
-OPP
3. Relief. -------OP Parties"CIMA No.406/2014 Page 1 of 9
2. The claimants/respondents, besides examining respondent No.1,Kamla Devi, have examined Kulvinder Singh and Ram Dayal as their witnesses whereas appellants have not examined any witness to rebut the evidence adduced by the claimants. The Tribunal after appreciating the evidence led by the claimants, assessing the monthly income of the deceased at 14810.00 with addition of 50% , deducting 10% as income tax, deducting 1/4th on account of personal expenses, determined the annual dependency of the claimants on the income of the deceased at Rs.1,79,942/-. Applying, the multiplier of 15 the total loss of dependency was assessed at Rs.26,99,000/-. Adding Rs.25,000/- for funeral expenses, Rs.5,000/- as loss of estate and Rs.1,00,000/- as loss of consortium, the Tribunal awarded an amount of Rs.28,29,000/- (Rupees Twenty eight lakh and twenty nine thousand only) along with interest at the rate of 7.5% as compensation to the claimants for the death of deceased Hayat Singh.
3. Aggrieved of the award of the Tribunal, the appellants-Union of India has come up in appeal seeking setting aside of the award, pleading that since an amount of Rs.21,89,406/- already stands paid to the respondents excluding special family pension of Rs.7,000/- + 100% DA (totaling Rs.14,000/-) per month, the award which is on higher side is liable to be set aside. On the other hand, claimants have preferred have preferred cross appeal seeking enhancement of the compensation awarded by the Tribunal.
4. Heard learned counsel for the parties and perused the record.
5. The only ground, which has been pressed by the learned counsel for Union of India is that on account of death of the deceased, the respondents- claimants were paid a sum of Rs.21,89,406/- on accounts of various heads, as such, the Tribunal could not have awarded any compensation. Elaborating his argument, learned counsel for the Union of India has given the breakup of the amount paid to the claimants, i.e., next kin of the deceased, an army personnel under different heads. For ready reference, the amount claimed to have been CIMA No.406/2014 Page 2 of 9 paid to the respondents-claimants on account of death of the deceased under different heads may be reproduced as under:-
" I. Final settlement of account - Rs.61,046/-
II. Armed Forces Personal provident Fund - Rs.1,26,665/-
III. Deposit Link Insurance Scheme -- Rs.60,000/-
IV. Financial Assistance from GRRC - Rs.7,000/-
V. Army Group Insurance Death benefits - Rs.7,50,000/-
VI. Army Group Insurance Maturity Rs.49,301/-
VII. Death Cum Retirement Gratuity Rs.97,464/-
VIII. Ex-Gratia Claim From Central Govt. Rs.10,00,000/-
IX. Financial Assistance from Army Wives
Welfare Association (AWWA) Rs. 5,000/-
X. Financial Assistance from army central
Welfare Fund (ACWF) Rs.30,000/-
XI. Special Family pension and DA 100% Rs.7,000/- pm
for life
From the perusal of different heads under which different sums have been paid to the respondents-claimants on account of death of deceased army personnel, it transpires beyond any doubt that all the sums except a sum of Rs.10,00,000/-, which has been paid by the Central Government on account of ex-gratia claim, are the sums which otherwise would have been payable to the deceased employee or his next of kin in case of his death during service, as such, these were not to be taken into consideration while computing the pecuniary loss that had occasion to the respondents on account of accidental death of the deceased. Insofar as ex-gratia payment is concerned, since the said payment of Rs.10,00,000/-, which is claimed to have been paid to the next of kin of the deceased is a payment, which has been received by the respondents on account of death of the deceased, which occurred due to motor vehicular CIMA No.406/2014 Page 3 of 9 accident, though in the course of his duty, is the only amount that is required to be deducted from the head of pecuniary loss that has been caused to the respondents-claimants on account of accidental death of the deceased. Position of law in this regard is no longer res integra and has been set at rest in number of judgments on the subject rendered by the Supreme Court and various other High Courts of the country.
6. In Helen C.Rebello v. Maharashtra State Road Trnsport Corporation; 1999 ACJ 1 (SC), the Supreme Court made it clear that under the Motor Vehicles Act, the Tribunals grant compensation to the claimants only on account of accidental injury or death, not on account of any other death. The Supreme Court went on to say that the pecuniary advantage accruing under the Act has to be deciphered, co-relating with the accidental death and therefore, the compensation payable under the Act is on account of the pecuniary loss to the claimant by accidental injury or death and not other forms of death. The Supreme Court, therefore, concluded that the application of general principle under the common law of loss and gain for the computation of compensation under the Act must co-relate to this type of injury or deaths, viz., accidental and if the word „pecuniary advantage‟ from whatever source was to be interpreted to mean any form of death under the Act, it would dilute all possible benefits conferred on the claimant and therefore, would be contrary to the spirit of the law. What was held by the Supreme Court in paras 32 & 33 of Helen C. Rebello's case (supra) reads thus:-
"32. 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.CIMA No.406/2014 Page 4 of 9
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 his Act delivers compensation to the claimant only on account of accidental injury or death, not on account of any other death. Thus, the pecuniary advantage accruing under this Act has to be deciphered, correlating 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 others 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 a motor vehicle, it would not be covered under the Motor Vehicles Act. Thus, 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. 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 moveable, 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 tort feasor in spite of his wrongful act or negligence, which contributes to the death, would have in many cases no liability or meager 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 the accidental death and not other forms of death. The constitution of the Motor Accident Claims Tribunal itself under Section 110 is, as the section states:CIMA No.406/2014 Page 5 of 9
".........for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to,......"
33. Thus, it would not include that which the claimant receives on account of other forms of deaths, which he would have received even apart from accidental death. Thus, such pecuniary advantage would have no corelation to the accidental death for which compensation is computed. Any amount received or receivable not only on account of the accidental death but that which would have come to the claimant even otherwise, could not be construed to be the "pecuniary advantage", liable for deduction. However, where the employer insures his employee, as against injury or death arising out of an accident, any amount received out of such insurance on the happening of such incident may be an amount liable for deduction. However, our legislature has taken note of such contingency through the proviso of Section 95. Under it the liability of the insurer is excluded in respect of injury or death, arising out of and in the course of employment of an employee....."
7. Similarly in the case of Vimal Kanwar and others v. Kishore Dan and others; 2013 ACJ 1441, the Supreme Court in paragraph No.19 while considering the issue as to 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, relied upon its earlier decision in Helen C. Rebello's case (supra) and came to the conclusion that such benefits, which would otherwise accrue to the next of kin of the deceased even if it was a death other than an accidental death cannot be treated to be pecuniary advantage as envisaged under the provisions of Motor Vehicles Act, therefore, are not required to be taken into consideration while computing just compensation payable to the claimant(s) of the deceased on account of death in motor vehicular accident.
8. Similarly in a recent judgment the Supreme Court in the case of Reliance General Insurance Company Ltd. v. Shashi Sharma and others; (2016) 9 SCC CIMA No.406/2014 Page 6 of 9 627 reiterated the principle expounded in the Helen C.Rebello's case (supra). Paragraph No.15 of the aforesaid judgment reads thus:-
"15. The principle expounded in this decision in Helen C. Rebello‟s case that the application of general principles under the common law to estimate damages cannot be invoked for computing compensation under the Motor Vehicles Act. Further, the "pecuniary advantage" from whatever source must correlate to the injury or death caused on account of motor accident. The view so taken is the correct analysis and interpretation of the relevant provisions of the Motor Vehicles Act of 1939, and must apply proprio vigore to the corresponding provisions of the Motor Vehicles Act, 1988. This principle has been restated in the subsequent decision of the two-Judge Bench in United India Insurance Co. Ltd. v. Patricia Jean Mahajan; (2002) 6 SCC 281, to reject the argument of the Insurance Company to deduct the amount receivable by the dependents of the deceased by way of "social security compensation" and "life insurance policy".
8. In view of this settled legal position, it can be concluded that the benefits like provident fund, pension, gratuity 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 on account of accidental death. While appreciating as to whether a particular pecuniary benefit derived by the heirs of the deceased is correlated to the death of the deceased in the accident caused in the use of motor vehicle or not, it is to be borne out in mind that if the benefits, of whatever kind, derived by the next of kin of the deceased are the benefits, which otherwise, would have been payable to them on account of death of the deceased irrespective of the cause of death then these are the benefits not correlated to death caused in the motor vehicular accident and therefore, are not to be taken into account while computing just compensation payable under the provisions of the Motor Vehicles Act.
9. In the instant case, respondents/claimants have received Rs.10,00,000/- as ex-gratia from the Appellant, which admittedly was paid on account of death of the deceased in an accident while travelling in official vehicle when he was CIMA No.406/2014 Page 7 of 9 on duty. The claimants would have not received the said ex-gratia amount, if the deceased had not died in the accident. Therefore, the ex-gratia amount, which had been received by the claimants/respondent, is correlated with the death of the deceased in the motor vehicular accident, as such, is liable to be excluded from the amount receivable by the claimants under the Motor Vehicles Act
10. In cross appeal, the claimants have primarily raised the issue that in view of the clear dictum laid down in Sarla Verma v.Delhi Transport Corporation, (2009) 6 SCC 121, multiplier of 17 should have been applied by the Tribunal as at the time of death, the deceased was aged about 27 years. Learned counsel appearing for the claimants/respondents submits that the multiplier laid down in para 42 of Sarla Verma's case (supra) cannot be scaled down on account of uncertainties etc, as has been done by the Tribunal, as such, there was no option with the Tribunal but to apply the multiplier of 17.
11. I have gone through paragraph No.42 of Sarla Verma's case in which different multiplier corresponding to the age of the deceased have been clearly indicated. I could not find anything in the aforesaid judgment, which would further give discretion to the Tribunals to scale down the multiplier on account of uncertainties or otherwise. That being so, the contention raised by the learned counsel for the respondent/claimants has a substance. Accordingly, multiplier of 17 is held applicable in the instant case.
12. The amount of compensation that would, therefore, be payable to the claimants on account of loss of dependency applying multiplier of 17 comes to (1,79,942 x 17) Rs. 30,59,014, excluding Rs.10,00,000/-, which the claimants have received as ex-gratia on account of accidental death of the deceased. Thus, the claimants are held entitled to Rs.20,59,014/- on account of loss of dependency. Besides this amount, in terms of Supreme Court‟s decision in Special Leave Petition(Civil) No.25590 of 2014 (National Insurance Company Ltd. v. Pranay Sethi and others) decided on 31.10.2017, the CIMA No.406/2014 Page 8 of 9 claimant/respondents are held entitled to Rs.15,000/- on account of loss of Estate, Rs.15,000/- on account of Funeral Expenses and Rs.40,000/- on account of loss of consortium. The total amount payable to the respondents would be as under:-
S.No. Head Amount
1. Loss of dependency Rs.20,59,014/-
2. Loss of estate Rs.15,000/-
3. Loss of consortium Rs.40,000/-
4. Funeral expenses Rs.15,000/-
Total Rs.21,29,014/-
This amount would be payable along with interest @ 7.5% per annum both pendentilite and future till its realization and the amount of compensation, if any paid under no fault liability shall be adjustable. The compensation shall be apportioned and dealt with as provided by the Tribunal.
13. Award of the Tribunal stands modified to the aforesaid extent.
14. With the aforesaid modification, both appeal and cross appeal are disposed of. Registry to release the amount in favour of the claimants/respondents in terms of the modified award after proper identification. Excess amount, if any, be released in favour of the appellant.
(Sanjeev Kumar) Judge Jammu 07 .12.2017 Vinod.
CIMA No.406/2014 Page 9 of 9