Orissa High Court
The Branch Manager, The Oriental Fire ... vs Laxmi Patra And Ors. on 18 March, 1991
Equivalent citations: 1992ACJ390, AIR1991ORI310, AIR 1991 ORISSA 310, (1992) 2 TAC 427 (1992) 1 ACJ 390, (1992) 1 ACJ 390
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT A. Pasayat, J.
1. The appeal by the Oriental Fire and General Insurance Company Limited (described in short as 'the insurer") and the cross-objection by claimants who are the dependents of one Krishna Murthy the victim of an accident, question the correctness of an award passed by the Second Motor Accidents Claims Tribunal, Southern Division Berhampur (in short 'the Tribunal').
2. While the insurer characterises the quantum of entitlement quantified at Rs. 60,000/- to be exhorbitant, the claimants assert that it is on lower side and the entitlement should be enhanced.
3. The factual position is almost undisputed. The claimants' case is that on 16-8-1985 a truck bearing registration No. OSS 61 belonging to Taleswar Pandey, respondent No. 7 in this appeal, dashed against the deceased Krishna Murty due to reckless driving causing his instantaneous death; the deceased was working as a peon in the Berhampur University since April, 1977 and continued in the employment of the University till his death; he was getting about Rs. 590/- per month at the time of accident and, therefore, the claimants were entitled to Rs. 1 lakh for loss of contribution for their sustenance. The owner of the vehicle remained ex parte, while the insurer filed objection challenging the plea of reckless driving by the driver of the offending vehicle, and other objections relating to quantum of entitlements.
The Tribunal on evaluation of the evidence and the documents pressed into service by the respective parties came to hold that the deceased was getting Rs. 590.05 per month at the time of his death; taking into consideration the expected life span a multiplier of 16 times could be applied after deducting one-third from the income for personal expenses; the claimants were entitled to get Rupees 75,520/-. He did not accept the contention that the emoluments received towards gratuity, provident fund etc. were to be deducted from the determined amount; and/or that any adjustment was to be made for the salary of the widow who was given employment on compassionate grounds. But without assigning any further reason, he directed payment of Rs.60,000/-.
4. According to the learned counsel for the insurer, the amount received by the claimants towards gratuity, provident fund and ex gratia payment should have been deducted and the Tribunal erred in not deducting the same. According to the claimants, after having quantified the entitlements at more than Rs. 75,000/-, without any basis there should have been no reduction of the amount to Rs. 60,000/-; the multiplier as adopted is erroneous and, therefore, the quantum as quantified is on the lower side.
5. The term "compensation" signifies that which is given in recompense, an equivalent rendered. Damage is distinguishable from compensation, since it constitutes the sum of money claimed or adjudged to be paid in compensation for loss or injury sutained, the value estimated in money of something lost or withheld. The term "compensation" etymologically suggests the image of balancing one thing against other; its primary signification is equivalence. Courts have indicated several modes for assessment of compensation. The three generally accepted modes of determination of compensation are (i) lump sum payment after determining the compensation, taking into account the annual loss of dependency multiplied in estimated life span, after making necessary deduction therefrom; (ii) the multiplier system, where calculation is made on the basis of annual loss of dependency multiplied by a suitable multiplier taking into consideration various factors; and (iii) interest system awarding lump sum to the dependents receipt of an amount by way of interest for the annual loss out of the amount of compensation determined by the Court. It would depend on the facts and circumstances of each case and it is for the Court to adopt any of the aforesaid modes which according to it would work out a just compensation. This view was expressed by a Full Bench of this Court in (1989) II OLR 196 : (AIR 1990 Ori 74) (FB), Orissa Road Transport Company Ltd. v. Sri R.K. Das.
6. The point that falls for consideration is whether the gratuity and provident fund received is to be duducted and whether any deduction was permissible to be made after a multiplier method was adopted on the facts of the case. Incidentally it has to be decided whether any adjustment is to be made for income of the deceased's widow which she was getting because of her employment on compassionate grounds. Undisputedly the age of the deceased was 30 years at the time of death. Normally 65 years is being adopted as expected life span of an Indian. Considering that the multiplier of 16 times appears to be on the lower side. In Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750, multiplier of 15 times was applied for a deceased aged 30 years. During last quarter of a century there is increase in life span of average Indian. So the multiplier of 16 times adopted by the Tribunal does not appear to be unreasonable. No uniform and absolute rule can be laid down and multiplier in each case has to be selected bearing in mind the facts and circumstances of the case.
The one-third deduction made by the Tribunal for personal expenses from the monthly receipt appears to be a reasonable basis. The other question is whether the gratuity and certain payments received by the claimants have to be deducted from the amount of determination. Similar question was considered by this Court in Jaganath Sinha v. Khiredini, 1977 ACJ 196, and it was held that such deduction is impermissible.
7. The insurer also submits that ex gratia payment has to be adjusted. According to Ext. A, the dependants were paid certain amount relating'to provident fund dues. It was suggested to P.W. 3, the widow during her cross-examination in Court that she had received Rs. 8,000/- from the University which was in the nature of gratuity payment. There is no material in support of this suggestion and Ext. A is merely a detailed sheet of receipts by the dependants. Tribunal has not indicated any basis or reason for quantifying amount payable at Rs. 60,000/- after having computed the entitlement to be Rs. 75,520/-. So the claimants are entitled to Rs. 75,520/-. No adjustment is to be made for the widow's income if any. What is to be assessed is the loss of dependency due to the accident, and therefore, any income earned by the widow has no role to play in the assessment. While considering the question of adjustment on account of gratuity, provident fund received or income having earned by the widow, it has to be borne in mind that what is to be assessed is compensation for deprivation of benefit to the claimants which they would have been entitled to had the deceased been alive. There is distinction between moneys coming into the hands of the claimant "at death" and "on account of death". The concept of mitigation of damages may be relevant while computing damages; but as indicated above, there is distinction between compensation and damage. There can also be a moralistic approach to the problem. A tortfeasor is not to be given the benefit of any money that comes into the hands of the claimant on account of death of a near and dear one. The set off as suggested would be conferring a benefit for a negligent act. Similar view was expressed by the Delhi High Court in AIR 1982 Delhi 1, Smt. Amarjit Kaur v. M/s. Vanguard Insurance Co. Ltd.
8. To sum up, the claimants are entitled to Rs. 75,520/- along with interest at the rate of 6% from the date of application till satisfaction, if paid within two months from today. Amount, if any paid already, shall be adjusted. If payment is not made within the stipulated time, it shall carry interest at the rate of 12%. Cost awarded by the Tribunal is affirmed. Out of the amount awarded a sum of Rs. 15,000/- for each of the minor children of the deceased shall be kept in Fixed Deposit Account with any National Bank, to be operated by their mother guardian. They shall be entitled to get the amount with interest on attaining majority. Each of the parents of the deceased shall get Rs. 10,000/-. The balance amount with interest shall be paid to the widow.
9. The appeal and the cross objection are accordingly disposed of.