Jammu & Kashmir High Court
Oriental Insurance Co. Ltd. vs Rakesh Kumar And Ors. on 31 December, 2002
Equivalent citations: 2003ACJ1008
JUDGMENT T.S. Doabia, J.
1. The amount of compensation in an injury case can be higher than what is payable to the heirs in case where accident proves to be fatal. Judicial precedents do recognise this fact. The facts which are not in dispute are:
(i) that the accident did take place;
(ii) that the claimant suffered 100 percent disability. It is a case of paraplegia with fracture DV 12;
(iii) that the claimant was 39 years of age at the time of accident;
(iv) that monthly salary of the petitioner was Rs. 8,062.
2. On the basis of the aforementioned factors and after hearing the Counsel for the parties, the Tribunal allowed compensation to the extent of Rs. 16,45,453. This is under the following heads:
(i) For treatment expenses Rs. 1,00,000
(ii) For loss of earnings Rs. 2,53,953
(iii) For loss of future earnings Rs. 7,09,500
(iv) For future expenseson attendants Rs. 1,32,000
(v) For future medical and incidental
expenses Rs. 50,000
(vi) For pain and suffering Rs. 2,00,000
(vii) For loss of amenities of life Rs. 2,00,000
3. Learned Counsel for the appellant insurance company seriously challenges the impugned award, so far award of compensation under the second and third heads is concerned. According to him the compensation which has been allowed is exorbitant. It is also submitted that the claimant must be getting some pensionary benefits and these are required to be deducted. It is admitted fact that the respondent was discharged from the Army after the accident. The accident took place on 11.4.1998. This was because of 100 per cent disability suffered by him, respondent was discharged. It is accordingly submitted that the pension and other benefits which the claimant would get should have been taken note of. It is submitted that the figure of Rs. 8,000 has been taken as the monthly income of the claimant.
4. It is settled law that pensionary benefits cannot be deducted from the amount of compensation which is allowed by a Tribunal under Motor Vehicles Act.
In Grand Trunk Railway Company of Canada v. Jennings (1888) 13 AC 800, their Lordships of the Privy Council considering the provision of Lord Campbell's Act (Fatal Accidents Act, 1846) made the following observations:
Where the widow of deceased is the plaintiff and her husband had made provision for her by a policy on his own life in her favour, the amount of such policy is not to be deducted from the amount of damages previously assessed irrespective of such consideration. She is benefited only by the accelerated receipt of the amount of the policy.
In Sushila Devi v. Ibrahim 1974 ACJ 150 (MP), same view was expressed. What is stated is being quoted below:
To sum up, in a claim for damages for death under Section 110-B of the Motor Vehicles Act, 1939, as it now stands, sums payable on death under any contract of social assurance or insurance are to be disregarded.
5. Above two are the cases where claim was made by the heirs of the deceased. So far as damage for personal injuries are concerned reference can be made to the decision reported as Perry v. Cleaver 1969 ACJ 363 (HL, England). In the above case claimants had sustained the injuries in a motor accident as a result of which he was discharged from service. He was awarded disablement pension and the question arose whether the pension received by him should be deducted while assessing the liabilities. For the claimant it was urged that pension like life insurance was the product of the employee's past services or thrift and it was neither equitable nor just that the tortfeasor should take over the benefit of the same. On behalf of the opposite party the contention was that plaintiff was entitled only to the actual loss suffered by him and the pension received by him should be deducted. The Law Lords discussed the principle in great detail and covered all the English authorities up-to-date. It will be appropriate to reproduce certain relevant observations of Lord Reid setting out the principles in such cases:
As regards moneys coming to the plaintiff under a contract of insurance, I think that the real and substantial reason for disregarding them is that the plaintiff has bought them and that it would be unjust and unreasonable to hold that the money which he prudently spent on premiums and the benefit from it should ensure to the benefit of the tortfeasor. Here again I think that the explanation that this is too remote is artificial and unreal. Why should the plaintiff be left worse off than if he had never insured? In that case he would have got the benefit of the premium money; if he had not spent it he would have had it in his possession at the time of the accident grossed up at compound interest. I need not quote from the well-known case of Bradburn v. Great Western Rly. Co. (1874-80) All ER Rep 195, but I may refer to an old Scottish case, Forgie v. Henderson (1818) 1 Murr 413, where pursuer was assaulted by the defender. During part of his resulting illness he received an allowance from a friendly society and Lord Chief Commissioner Adam said in charging the jury:
I do not think you can deduct the allowance from the society as that is of the nature of an insurance and is a return of money paid'.
6. See also Union of India v. Vijay Sundari 1991 ACJ 770 (MP), wherein pensionary benefits were held to be an amount which was not supposed to be deducted from the claimant. Similar view stands expressed in Madhya Pradesh Electricity Board v. Ram Mohan Shrivastava 1998 ACJ 651 (MP). See also Jahirabi v. V.S. Siddalingappa 2001 ACJ 1340 (Karnataka). In view of the above the argument that pensionary benefit should be deducted is an argument which cannot be accepted.
7. Even if what is said by the learned Counsel for the appellant qua the income component is taken note of even then there is no room for decreasing the amount. This is because it is well-known fact that a Naib Subedar in the Army gets free ration and other facilities. These factors were never projected and taken note of while computing the income of the claimant. Therefore, to say that the income has been wrongly computed and this assessment is exorbitant cannot be accepted.
8. So far as item No. 3 is concerned the loss refers to the future earnings. Claimant was 39 years of age at the time of accident. He was Naib Subedar. The possibility of his getting promotion and the possibility of there being increase in the salary was there. Therefore, to say that the amount which has been allowed is on the higher side, cannot be accepted. As a matter of fact under item No. 4 for future expenses on attendants Rs. 1,32,000 has been allowed. When an attendant is to be arranged this would not be available for less than Rs. 1,000 as wages. The claimant was 39 years of age at the time of accident and normal expectancy of age is 70 years. He has to remain on the wheelchair for all these years. The claimant would be missing so many amenities of life and these factors have been taken note of by the Tribunal. Therefore, the compensation assessed under 4th head appears to be on the lower side. The reasoning given by the Tribunal cannot be faulted.
9. There is yet another aspect of the matter. The total compensation awarded is Rs. 16,45,453. The interest rate now it is around 7 per cent per annum. If this aspect of the matter is taken note of then interest accrued on the amount awarded would be Rs. 1,28,000 per annum. This is hardly an amount on which a person suffering 100 per cent disability can sustain himself. Thus looking from any point of view there is no room for making any decrease in the quantum of compensation. Similarly, there is no room for increase. Both the appeals are dismissed. The amount if not deposited, be deposited with the Registrar Judicial of this court within two months. In case it is not deposited within the said period the rate of interest would be 3 per cent over and above the rate of interest awarded by the Tribunal. 50 per cent of the amount be deposited in the name of the claimant for a period of three years and claimant would be entitled to get quarterly interest. 40 per cent of the amount be deposited in fixed deposit for a period of two years and the remaining amount would be deposited in a fixed deposit account for a period of six months. So far as FDR valid for 3 years and 2 years are concerned, this as indicated would again be renewed and reinvested and this would be released only if an application is filed by the claimant and sufficient cause is shown for the need of the amount. This provision has been made so that the principal amount remains intact and the claimant may continue to get interest component. With these observations both the appeals are disposed of.