Gauhati High Court
National Insurance Co. Ltd vs Mrs. Suwala Dutta Saikia & Ors on 2 December, 2016
Author: Suman Shyam
Bench: Suman Shyam
IN THE GAUHATI HIGH COURT
(High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
MAC Appeal No. 173/2013
National Insurance Co. Ltd. ......Appellant
VERSUS
Mrs. Suwala Dutta Saikia & Ors. ......Respondent
BEFORE HON'BLE MR. JUSTICE SUMAN SHYAM For the Appellant : Mr. R. Sarma, Advocate For the Respondent : Mr. A. Chamuah, Advocate Date of hearing : 03-11-2016 Date of Judgment : 02-12-2016 Judgment and Order (CAV) Heard Mr. R. Sarma, learned counsel for the appellant. Also heard Mr. A. Chamuah, learned counsel for the respondents/ claimants.
2. This appeal has been preferred against the judgment and award dated 13-12-2012 passed by the learned Member, Motor Accident Claims Tribunal (MACT), Kamrup, Guwahati in connection with MAC Case No. 1999/2003 awarding an amount of Rs. 16,53,000/- along with interest @ 6% per annum to be calculated on the said amount w.e.f. 03-07-2003 till payment, in favour of the claimants.
3. The brief factual background of the case is that the deceased husband of the claimant No. 1 was traveling in a Maruti Van and while coming from Guwahati towards Nagaon on 26-03-2003 at about 05:00 p.m. his vehicle met with a head on collision with a Mahindra Pickup Van MAC Appeal No. 173/2013 Page 1 of 21 bearing registration number AS-01M-7088 near Jungalbalahugarh as result of which the husband of the claimant No. 1 viz. Rajib Lochan Saikia had sustained grievous injuries and died on the spot. At the time of his death, the deceased was serving as a lecturer in the State Council of Education Research and Training (SCERT) under the Department of Elementary Education, Assam drawing an emolument of Rs. 10,000/- per month. The deceased had left behind five dependents including claimant No. 1 his wife, claimant Nos. 2 and 3 his parents and the claimant Nos. 4 and 5 being the minor children. The Mahindra Pickup Van was insured with the appellant and therefore, a claim petition was filed seeking compensation on account of the accidental death of Rajib Lochan Saikia.
4. On consideration of evidence available on record, the learned Tribunal had awarded an amount of Rs. 16,38,000/- on account of loss of dependency buy applying the multiplier of 14. That apart, an amount of Rs. 5000/- was awarded for funeral expenses besides awarding an amount of Rs. 10,000/- on the ground of loss of consortium, thus, awarding a total amount of Rs. 16,53,000/- as compensation. The award dated 13-12-2012 is under challenge in this appeal filed by the Insurance Company.
5. It appears that after the death of her husband in the motor accident, the claimant No. 1 was given employment by the SCERT on compassionate ground and accordingly the claimant No. 1 had joined service drawing a regular pay scale of Rs. 25,870/- per month. From a perusal of the grounds mentioned in the memorandum of appeal it further MAC Appeal No. 173/2013 Page 2 of 21 appears that the insurance company has preferred the appeal against the impugned judgment and award dated 13-12-2012 primarily on the ground that the claimant No. 1 having been offered employment by the SCERT on compassionate ground, the learned Tribunal ought to have taken into account the salary drawn by the clamant No. 1 while computing the compensation for loss of dependency and therefore, the amount of Rs. 16,38,000/- awarded by the learned Tribunal without deducting the salary of the claimant No 1 was unsustainable in law.
6. By placing heavy reliance on a decision of the Supreme Court rendered in the case of Bhakra Beas M anagem ent Board Vs. K anta Aggarw al (Sm t) & Ors. reported in (2008) 11 SCC 366 , Mr. Sarma, learned counsel for the appellant submits that in the aforementioned decision it has been held that the benefits received by the claimant by way of compassionate appointment is required to be considered while determining just compensation in an accident claim inasmuch as the compensation computed on the ground of loss of dependency would have to be worked out by taking the said factor in to account. Since the learned Tribunal had not deducted the salary received by the claimant No. 1 (wife) while computing the amount of compensation for loss of dependency, hence, according to Mr. Sarma, applying the principle of law laid down in the case of Bhakra Beas Management Board (Supra), the amount awarded by the tribunal is clearly unjustified and is liable to be reduced. MAC Appeal No. 173/2013 Page 3 of 21
7. Mr. Chamuah, learned counsel for the respondent has strongly resisted the contention raised by the appellant by arguing that in the case of Bhakra Beas Management Board (Supra) the vehicle involved in the accident belonged to the employer of the deceased and as such, the organization had direct linkage with his accidental death. The learned counsel submits that the compassionate appointment and the residential accommodation in the Bhakra Beas Management Board (Supra) case was given by the wrong doer as a measure of compensation. But in the present case, the employer had no connection with the accident and the compassionate appointment offered to the wife of the deceased was not on account of the motor accident but on account of the death of her husband. As such, the ratio of the decision in the case of Bhakra Beas Management Board (Supra), according to Mr. Chamua, would not be applicable in the facts and circumstances of the present case.
8. By placing reliance on the decision of the Supreme Court rendered in the case of Helen C. R ebello (M rs.) & Ors. Vs. M aharashtra State R oad Transport Corporation & Anr. reported in (1999) 1 SCC 90 , Mr. Chamuah submits that in the said decision, the Supreme Court has categorically laid down the general principle under the common law for computing loss and gain whereby it has been held that the pecuniary advantage received by the claimant has to be one on account of the accidental death and not from other forms of death for adjusting the same with the amount of compensation payable. Mr. Chamuah submits that MAC Appeal No. 173/2013 Page 4 of 21 appointment on compassionate ground could have been given to the claimant No. 1 by the employer of her deceased husband for any kind of death and not merely on accidental death and therefore, the benefits accruing to the claimant No. 1 on account of her appointment on compassionate ground cannot be deducted while computing the quantum of just compensation on the ground of loss of dependency.
9. Mr. Chamuah has also relied upon another decision of the Supreme Court in the case of Vim al K anw ar & Ors. Vs. K ishore Dan & Ors. reported in (2013) 7 SCC 476 to contend that the compassionate appointment given to the claimant No. 1 may be due to the death of her husband who was an employee of SCERT but the same is not necessarily having a correlation with the accidental death. In support of his above argument, Mr. Chamuah has also placed reliance upon another decision of a Division Bench of this Court rendered in the case of K anika Hazarika & Ors. Vs. Sreeram Barthakur & Ors. reported in 2001 (1) GLT 82 wherein it has been held that the amount of salary paid to the widow on her employment due to the death of the victim is not deductible from the compensation payable under the M.V. Act, 1988.
10. Questioning the quantum of compensation awarded by the learned Tribunal, Mr. Chamuah has further contended that the Tribunal had committed an error in taking the salary of the deceased to be Rs 10,000/- per month which is not correct. The learned counsel has pointed out that even by applying the multiplier of 14 the computation of compensation MAC Appeal No. 173/2013 Page 5 of 21 made by the Tribunal is, on the face of the record, was erroneous since the gross salary of the deceased per month was admittedly Rs. 10,600/- and a professional tax of Rs. 155/- was only deductible from the said salary. As such, the salary of the deceased after deduction of tax would come to Rs. 10,445/- but the learned Tribunal has computed compensation amount by taking the salary of the deceased after tax to be Rs. 10,000/- only. According to Mr. Chamuah by applying the multiplier of 14 and taking the salary of the deceased to be Rs. 10,445/- per month the total compensation on account of loss of dependency would come to Rs. 17,10,912/- instead of Rs. 16,38,000/- as has been erroneously awarded by the learned Tribunal.
11. The learned counsel has further argued that in view of the law declared by the Supreme Court in the case of R ajesh Vs. R ajbir Singh reported in (2013) 9 SCC 54, the claimants were entitled to atleast an amount of Rs. 1,00,000/- on account of loss of consortium and an amount of Rs. 25,000/- on account of funeral expenses and the Tribunal ought to have granted a further amount of Rs. 1,00,000/- to the claimant on account of loss of care and guidance by following the principles laid down in the case of Rajesh (Supra). However, no such amount has been awarded by the learned Tribunal so as to work out a just compensation. This apart, submits Mr. Chamuah, the interest awarded by the Tribunal @ 6% per annum is also too less and as per the decisions of the Supreme Court as well as this Court in a number of cases, the rate of interest ought MAC Appeal No. 173/2013 Page 6 of 21 to have been calculated @ 9% per annum. After such calculation and adding an amount of Rs. 1,00,000/- on the head of loss of care and guidance of the minor children besides taking loss of consortium to be an amount of Rs. 1,00,000/- as per the principle laid down in the case of Rajesh Vs. Rajbir Singh (Supra), the total compensation payable in the present case, according to Mr. Chamuah would be Rs. 19,35,912/-. However, the learned Tribunal has awarded an amount of Rs. 16,53,000/- only, which was less than the entitlement of the claimants.
12. Mr. Chamuah submits that although the claimants have not preferred a cross appeal seeking enhancement of the amount of compensation yet, under the principles of law embodied in Order XLI Rule 33 CPC this Court in exercise of appellate jurisdiction would have ample power to grant such relief that ought to have been granted by the Tribunal. Therefore, submit Mr. Chamuah, this Court may grant suitable enhancement of the compensation in terms of the directives contained in the case of Rajesh Vs. Rajbir Singh (Supra).
13. Opposing the said prayer, Mr. R. Sarma, learned counsel for the appellant has relied upon a decision of the Supreme Court in the case of R anjana P rakash & Ors. Vs. Divisional M anager & Ors. reported in (2011) 14 SCC 639 to contend that the Tribunal having awarded some amount under the head of funeral expenses and loss of consortium and the respondent not having preferred any cross appeal seeking enhancement of the amount, the High Court would not have the MAC Appeal No. 173/2013 Page 7 of 21 jurisdiction to direct enhancement of the amount of compensation on the aforesaid head. The learned counsel for the appellant, however, does not dispute the fact that the court below has applied the correct multiplier of 14 while computing compensation amount. Responding to the submission of Mr Chamua that the salary of the deceased ought to have been take as Rs 10,445/ - and not Rs 10,000/-, the learned counsel for the appellant has fairly conceded to the said point and submits that it was a mere calculation error which can be corrected by this court even at this stage.
14. I have considered the rival submission made by the learned counsel appearing for the parties and have also gone through the materials available on record. There is no dispute about the fact that the deceased husband of the claimant No. 1/ respondent No. 1 was an employee of SCERT and he had died in a motor accident on 26-03-2003 on being hit by a Mahindra Pickup Van which was being driven in a rash and negligent manner. The insurance company has also not denied its liability. The appeal has been preferred by the insurance company questioning the quantum of compensation. During the course of argument, the learned counsel for the appellant has addressed the Court only on the quantum of compensation awarded under the head of loss of dependency urging this Court to deduct the amount received by the wife of the deceased as salary. Therefore, the core question that arises for adjudication in this appeal is as to whether the salary received by the widow of the deceased i.e. the claimant No. 1 on account of her compassionate appointment is MAC Appeal No. 173/2013 Page 8 of 21 deductible from the amount of compensation payable under the provision of the M.V. Act. 1988?
15. As has been mentioned above, the law as regards computation of compensation for death in motor accident and adjustment of pecuniary advantages coming from the other sources by reason of death has been settled by the Supreme Court in the case of Helen C. Rebello (Supra). The observation made by the Supreme Court in the paragraphs 32, 33, 34 and 35 are quoted herein below for ready reference:
"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. 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 this 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, co-relating 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 other 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 motor vehicle it would not be covered under the Motor Vehicles Act. Thus, the application of general principle under the common law of loss and gain for the computation of compensation under this Act must co-relate to this type of injury or deaths, 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 of 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 MAC Appeal No. 173/2013 Page 9 of 21 movable, immovable, shares, bank accounts, case 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 tortfeasor in spite of his wrongful act or negligence, which contributes to the death, would have in many cases no liability or meagre 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 accident 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 form of death. The constitution of the Motor Accidents Claims Tribunal itself under Section 110 is, as the Section states;
"....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 claimant receives on account other form of deaths, which he would have received even apart from accidental death. Thus, such pecuniary advantage would have no correlation to the accidental death for which compensation is computed. Any amount received or receivable not only on account of the accidental death but that 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 incidence may be an amount liable for deduction. However, our legislature has taken not 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.
34. This is based on the principle that the claimant for the happening of the same incidence may not gain twice from two sources. This, it is excluded thus, either through the wisdom of legislature or through the principle of loss and gain through deduction not to give gain to the claimant twice arising from the same transaction, viz., same accident. It is significant to record here in both the sources, viz., either under the Motor Vehicles Act or from the employer, the compensation receivable by the claimant is either statutory or through the security of the employer securing MAC Appeal No. 173/2013 Page 10 of 21 for his employee but in both cases he receives the amount without his contribution. How thus an amount earned out of one's labour or contribution towards one's wealth, savings, etc. either for himself or for his family, which such person knows, under the law, has to go to his heirs after his death either by succession or under a will could be said to be the 'pecuniary gain' only on account of one's accidental death. This, of course, is pecuniary gain but how this is equitable or could be balanced out of the amount to be received as compensation under the Motor Vehicle Act. There is no co-relation between the two amounts. Not even remotely. How can an amount of loss and gain of one contract could be made applicable to the loss and gain of another contract. Similarly, how an amount receivable under a statute has any co-relation with an amount earned by an individual. Principle of loss and gain has to be on the same place within the same sphere, of course, subject to the contract to the contrary or any provisions of law.
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, 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 co-relation 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 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 insurer indemnifies to pay the sum to the heirs, again in terms of the contracts for the premium paid. Again, this amount is receivable by the claimant not on account of any accidental death but otherwise on insured's death. Death is only a step or contingency in terms of the contract, to receive the amount. Similarly any case, 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 co-relation 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 similar MAC Appeal No. 173/2013 Page 11 of 21 and same plane having nexus inter so between them and not to which, there is no semblance of any co-relation. The insured (deceased) contributes his own money for which he receives the amount has no co-relation to the compensation computed as against torfeasor for his negligence on account of accident. As aforesaid, the amount receivable as compensation under the Act is on account of the injury of death without making any contribution towards it then how can 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 without any contribution. As we have said the compensation payable under the Motor Vehicles Act is statutory while the amount received under the life insurance policy is contractual."
16. Again in the case of Vimal Kanwar (Supra) the Supreme Court has made the following observation in paragraph 21:
"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 who 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 the Motor Vehicles Act and any amount received on such appointment is not liable for deduction for determination of compensation under the Motor Vehicles Act."
17. In the case of United I ndia I nsurance Com pany Ltd. Vs. P atricia Jean M ahajan reported in (2002) 6SCC 281, the Supreme Court has held that in a case of compensation awarded for death in motor MAC Appeal No. 173/2013 Page 12 of 21 accident, only the receipts having some correlation with the accidental death would be deductable.
18. By following the decision of the Supreme Court in the case of Helen C. Rebello (Supra) a Division Bench of this Court has held in the case of Kanika Hazarika (Supra) that the amount of salary paid to a widow for her compassionate appointment by the employer of the deceased husband would not be deductible from the amount of compensation payable under the Act. The observation of the Division Bench made in paragraph 10 of the said decision is quoted herein below:
"(10) In view of the law laid down by the Apex Court as stated above let us consider the facts of the present case. There is no dispute at the Bar that the claimant Smt. Kanika Hazarika was given an employment in the Bank by the employer of the deceased and the said bank is not a wrong-doer and it was no way connected with the accident. Now, the question is whether the employment of the claimant is in any way correlated to the accidental death for which the compensation is awarded. The claimant could have been provided with a job under the die-in-harness scheme irrespective of the fact that the deceased had died as a result of a vehicular accident or otherwise even natural death. That was the benefit provided, to the employee by the employer and thus, it is no way related to the accidental death of the deceased. Respondents before us are no way connected with the employment of the claimant. This is not a case where a wrong-doer in order to compensate the victim or the dependents of the deceased has done something out of compensation by providing them with a job so that the victim is compensated. Thus, the ratio of law laid down by the Full Bench of this Court in Saminder Kaur (supra) is distinguishable and not applicable to the facts established in the present case. The decision in Helen C. Rebello (supra) covers the matter in hand. Applying the above, we are of the opinion that the Tribunal, erred in law in deducting Rs. 2,000/- from the amount of the dependency."MAC Appeal No. 173/2013 Page 13 of 21
19. In Bhakra Beas Management Board (Supra) the Supreme Court had held that the benefits received by the wife of the deceased by way of compassionate appointment ought to have been taken into account while determining just compensation. A question therefore, arose as to whether the decision of the co-ordinate Bench of the Supreme Court in the case of Helen C. Rebello (Supra) was in conflict with the decision rendered in Bhakra Beas Management Board (Supra). Answering the said question in the negative, a three Judges Bench of the Supreme Court has observed in a recent decision in the case of R eliance General I nsurance Com pany Ltd. Vs. Shashi Sharm a & Ors. and batch of connected petitions [ref :
2016 SCC Online SC 986 (Web Edition)] that there was no conflict in the principles expounded in both the decision, thereby affirming the principles laid down in Helen C. Rebello (Supra). The observation made by the Supreme Court is reproduced here-in-below for ready reference:-
"13. In the case of Bhakra Beas Management Board (supra), ostensibly, it may appear that a departure has been made in allowing deduction of the pecuniary advantage received by the claimants from other source on account of death of her husband. However, on a closer analysis of the said decision, two aspects become prominent. Firstly, the grievance of the appellant Board was that the claimants had filed an appeal before the High Court for enhancement of compensation of amount, which was still pending. However, the appeal preferred by the Board against the same decision was dismissed by the High Court. The grievance of the appellant was essentially about the inappropriate approach of the High Court in dismissing its appeal. That can be discerned from the observation in paragraph 13 of the reported decision. From the observation found in para 14 of the reported decision, it is seen that the High Court judgment has been held to be clearly unsustainable. That must be understood as disapproving the approach of the High Court in dismissing the appeal filed by the appellants, though cross appeal filed by MAC Appeal No. 173/2013 Page 14 of 21 the claimants for enhancement of compensation amount was pending before it. The second aspect, is that, the Court, to do complete justice between the parties and for bringing quietus to the long pending litigation (14 years) between them, including to dispose of appeal of the claimants pending before the High Court, passed an order for full and final settlement of all the claims inter partes. That can be discerned from paragraphs 13 and 14, which read thus:
"13. Learned counsel for the respondent supported the judgment and additionally submitted that appeal of respondent 1 is pending. In normal course, when two appeals are directed against the common judgment, both the appeals should be heard by the same bench of the High Court. But we find that the High Court had lost sight of the fact that the benefits which the claimant receives on account of the death or injury have to be duly considered while fixing the compensation. It is pointed out that Respondent 1 was getting Rs.4,700/-p.m. and a residence has been provided to her and actually the compassionate appointment was given immediately after the accident.
"14. In view of what has been stated above, the High Court's judgment is clearly unsustainable. However, the accident took place more than 14 years back and it would not be desirable to send the matter back to the Tribunal for fresh consideration. A sum of rupees five lakhs has been deposited vide this Court's order dated 1-11-2004. We are of the considered view that in view of the background facts, it is just and proper that the sum of rupees five lakhs already deposited shall be permitted to be withdrawn by the claimants in full and final settlement of the claim relatable to the death of the deceased. It is for the Tribunal to fix the quantum of fixed deposit and the amount to be released to the claimants."
14. Thus understood, it is not an authority of having taken a contra view than the view expressed in Helen C. Rebello and Patricia's case. As a matter of fact, in para 11 of the reported decision, paragraphs 32 to 34 of Helen C. Rebello's case has been reproduced in its entirety. No observation is found in the entire decision, to have doubted the correctness of the dictum in Helen C. Rebello and Patricia's case.
15. Be that as it may, the term compensation has not been defined in the Act of 1988. By interpretative process, it has been MAC Appeal No. 173/2013 Page 15 of 21 understood to mean to recompense the claimants for the possible loss suffered or likely to be suffered due to sudden and untimely death of their family member as a result of motor accident. Two cardinal principles run through the provisions of the Motor Vehicles Act of 1988 in the matter of determination of compensation. Firstly, the measure of compensation must be just and adequate; and secondly, no double benefit should be passed on to the claimants in the matter of award of compensation. Section 168 of the Act of 1988 makes the first principle explicit. Sub-section (1) of that provision makes it clear that the amount of compensation must be just. The word "just" means - fair, adequate, and reasonable. It has been derived from the Latin word "justus", connoting right and fair. In para 7 of State of Harayana & Anr. vs. Jasbir Kaur & Ors., it has been held that expression "just" denotes that the amount must be equitable, fair, reasonable and not arbitrary. In para 16 of Smt. Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr., this Court has observed that the compensation "is not intended to be a bonanza, largesse or source of profit". That however may depend upon facts and circumstances of each case, as to what amount would be a just compensation.
16. The principle discernable from the exposition in Helen C. Rebello's case (supra) is that if the amount "would be due to the dependants 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."
20. From a careful analysis of the aforementioned judicial pronouncements, I find that law on the point is firmly settled that the MAC Appeal No. 173/2013 Page 16 of 21 benefits received by the widow/ dependent of the deceased, which is not strictly connected with the accidental death, will not constitute pecuniary advantage within the meaning of M.V. Act, 1988 and therefore, shall not be deductible from the amount of compensation. Therefore, the law laid down by the Supreme Court in the case of Bhakra Beas Management Board (Supra) has to be understood in the fact situation of that case and the principle laid down therein would not have any application in the facts and circumstances of the present case. Rather, the principles expounded in the case of Helen C. Rebello (Supra) and Vimal Kanwar (Supra) as followed in the case of Kanika Hazarika (Supra), in my opinion, would have direct application in the facts of the present case.
21. In view of what has been discussed above, I am of the unhesitant view that the salary payable to the claimant No. 1 by the SCERT on account of her employment on compassionate ground would not be deductible from the compensation awarded by the Tribunal on account of loss of dependency. As such, the question raised in this appeal stands answered in favour of the claimants/ respondents and against the appellant.
22. Now coming to the next question of enhancement of the amount of compensation as raised by Mr. Chamuah, it must be mentioned herein that in the case of Ranjana Prakash (Supra) the Supreme Court had observed that although the power under Order XLI Rule 33 CPC enables the appellate court to pass any order which ought to have been passed by MAC Appeal No. 173/2013 Page 17 of 21 the trial court and to make such further or other orders as the case may required even if the respondent have not filed any appeal or cross objection but such power cannot be invoked to grant a larger or higher relief. In the context of enhancement of claim of compensation payable under the M.V. Act, 1988 the Supreme Court has made the following observation:
"8. Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/ insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by the owner/ insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by the owner/ insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation."
23. Mr. Chamuah, learned counsel for the respondent has relied upon a decision of the Supreme Court in the case of Jitendra K him shankar Trivedi & Ors. Vs. K asam Daud K um bhar & Ors. reported in (2015) 4 SCC 237 to argue that the amount of compensation has to be fair and reasonable and therefore, the High Court would have the power to enhance the amount of compensation even where no cross appeal had been filed by the claimant. However, from a careful observation of the law declared by the Supreme Court in the case of Jitendra Khimshankar Trivedi (Supra) it is seen that in that case the court below had not MAC Appeal No. 173/2013 Page 18 of 21 awarded any compensation towards loss of consortium and towards love and affection according to the law laid down in the case of Rajesh (Supra) and it was in such fact situation that the Supreme Court had awarded the additional amounts towards loss of consortium, love and affection to the minor children. From a careful reading of the law declared by the Supreme Court in the case of Ranjana Prakash (Supra) and Jitendra Khimshankar Trivedi (Supra), it can be seen that there is no conflict in the principles expounded in both the decisions.
24. Interpreting Section 168 of the M.V. Act, 1988, the Supreme Court has observed in paragraph 12 in the case of Jitendra Khimshankar Trivedi (Supra) that in the cases where the Tribunal had omitted to grant relief to the claimants to which they were otherwise entitled under the law, it would not only be proper but also obligatory for the court/ tribunal to award a just and reasonable compensation. But in cases where the tribunal had awarded some compensation on a particular head, in the absence of a cross appeal preferred by the claimant, the Court cannot enhance the amount of compensation on the said head by invoking jurisdiction under Order XLI Rule 33 CPC on the ground that the amount is inadequate. That is because inadequacy of any amount awarded by the tribunal would point at an erroneous decision of the tribunal which can be corrected only in exercise of appellate jurisdiction of a superior court/ tribunal.
MAC Appeal No. 173/2013 Page 19 of 21
25. As per the decision in the case of Rajesh Vs. Rajbir Singh (Supra) the claimants are entitled to an amount of Rs 1,00,000/- under the head "loss of love and affection of the minor children". Although the decision in the case of Rajesh Vs. Rajbir Singh (Supra) came only on 12-04-2013 i.e. after the impugned award was passed by the learned tribunal, yet, since an appeal is considered to be continuation of the original proceeding, and bearing in mind the beneficial object of the M.V. Act, 1988, I am of the view that the claimants would be entitled to an amount of Rs. 1,00,000/- (Rupees One Lakh) on the head of loss of love and affection of the minor children as per the decision in the case of Rajesh Vs. Rajbir Singh (Supra). Consequently, a further amount of Rs. 1,00,000/- is awarded to the claimant on the head of loss of love and care and protection. However, since the learned Tribunal has already awarded some amount on the head of loss of consortium and funeral expenses and the rate of interest, hence, I am not inclined to entertain the prayer for enhancement of such amount in the absence of any cross appeal being preferred by the respondents/ claimants.
26. In the result, the appeal stands dismissed. However, for the reasons stated above, the amount of compensation awarded by the learned Tribunal would stand modified by computing the loss of dependency taking the salary of the deceased to be Rs. 10,445/- per month instead of Rs. 10,000/- per month by applying the multiplier of 14. On the figures so arrived, a further amount of Rs. 1,00,000/- would be MAC Appeal No. 173/2013 Page 20 of 21 added on the ground of loss of companionship, love and care and affection of the minor children. The rate of interest payable, as directed by the tribunal, shall remain unaltered. The award passed by the learned Tribunal would stand modified to the above extent.
The appeal stands disposed of.
No order as to cost.
JUDGE GS MAC Appeal No. 173/2013 Page 21 of 21