Uttarakhand High Court
The Oriental Insurance Company Limited vs Smt Laxmi Devi And Others on 17 July, 2017
Author: Servesh Kumar Gupta
Bench: Servesh Kumar Gupta
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Appeal from Order No. 240/2017
The Oriental Insurance Company Ltd. .... Appellant
Versus
Smt. Laxmi Devi & Others .... Respondents
Mr. I.P. Kolhi, Advocate, for the appellant.
Mr. M.S. Bhandari, Advocate, for the claimants/respondents
no. 1 to 3.
None for the remaining respondents.
With
Appeal from Order No. 247/2017
Smt. Laxmi Devi & Others .... Appellants
Versus
Vipin Kumar Dandriyal & Others .... Respondents
Mr. M.S. Bhandari, Advocate, for the claimants/appellants.
Mr. I.P. Kolhi, Advocate, for the respondent no. 3/insurance
company.
None for the remaining respondents.
July 17th, 2017
Hon'ble Servesh Kumar Gupta, J.
Both these appeals have arisen out of the same judgment and order dated 3.2.2017 rendered by the Tribunal in MACP Petition No. 4/2016, hence are being taken up together for adjudication by this common verdict.
AO No. 240/207 has been filed by the insurance company challenging the exorbitant quantum of compensation granted by the Tribunal, while AO No. 247/2017 has been preferred by the claimants for enhancement of such award.
Having heard the rival contentions, it transpires that the accident occurred on 9.11.2015 at around 1 PM when the bus no. UK12-PB-0090 travelling from Kotdwar 2 to Satpuli (in District Pauri Garhwal) fell down near village Gahed in a deep gorge and as a consequence, Mr. Mohan Singh @ Manmohan Singh, aged 58 years, lost his life. The claim petition was instituted asking the compensation to the tune of rupees sixty lakhs, whereagainst learned Tribunal has awarded Rs. 26,26,680/- along with 6 per cent interest from the date of institution of the petition to that of actual payment.
Factum of accident, insurance cover and losing of life by Mohan Singh have not been disputed. Learned Counsel for the insurer has agitated only the exorbitant grant of compensation on the basis that the pay certificate of the deceased, issued by the Bharat Sanchar Nigam Limited, was believed by the Tribunal for calculating the compensation in the wrong manner.
I have looked on such pay certificate issued by the Accountant of the BSNL wherein it has been shown that the gross payment of the deceased was Rs. 36,065/-. It must have been taken into notice that such amount also includes the cycle maintenance allowance, IDS-dearness allowance, house rent allowance, rural area allowance, stagnation increment 1, stagnation increment 2, stagnation increment 3, skill upgradation allowance, transport allowance and washing allowance. That apart, the Tribunal has utterly failed to have note of income tax deduction to the tune of Rs. 914/- per month from the source of salary of such employee.
In such matters, the law has been made clear by the Hon'ble Apex Court in the case of Bhakra Beas Management Board v. Kanta Aggarwal & Others, 2008 (3) T.A.C. 661, wherein it was held that the High Court lost sight of the fact that benefits which the claimant receives on account of death or injury have to be duly considered 3 while fixing compensation. In that case, rupees five lakhs was deposited towards the compensation and looking to the 14 years old matter, the Hon. Apex Court did not find it proper to send it back for re-trial and disposed of the matter finally directing to make the payment of rupees five lakhs only against the award of Rs. 8,48,160/-.
In the case (supra), the Hon'ble Supreme Court was of the view that employment on compassionate ground and other benefits, which the claimants receive on account of death have to be duly considered while fixing the compensation.
A similar controversy was dealt with by this Court in AO No. 383/2011, New India Assurance Co. Ltd. v. Smt. Shakun Chitra & Others, decided on 22.7.2016, wherein this Court has relied upon the Bhakra Beas Management Board case along with another precedent of Hon'ble Apex Court rendered in Ramprasad Balmiki v. Anil Kumar Jain & Others, reported in 2008 (4) T.A.C. 385, wherein it was held that even the amount of pension would have mitigated the quantum of damages and same was required to be taken into consideration.
It has been said time and again in the many judgments of the Hon. Apex Courts and the various High Courts that death of the earning member of a family can never be taken as a windfall for other members of the family and the amount so evaluated should not be taken as largesse in such matters. The whole object behind this social legislation is to save the dependants from indigence or from being on the road in the absence of bread earner.
Admittedly, deceased Mohan Singh had completed 58 years of age. Only 2 years of his service was left. BSNL is a government concern. So in all probabilities, one of the claimants, i.e. his widow and two major sons, 4 would have been accommodated in the service in the BSNL as per his/her qualification. His widow Smt. Laxmi Devi must be getting family pension besides the payment of gratuity, leave encashment, insurance, etc. So, looking to the whole scenario, I think that taking the gross monthly salary of the deceased even without deduction of the income tax was wholly unjustified. In all fitness, I calculate the compensation as under.
Basic pay of the deceased was Rs. 14,880/-. On addition the dearness allowance of Rs. 17,512/- in it, the income comes to Rs. 32,392/-. On deducting the income tax of Rs. 914/-, the net monthly income comes to Rs. 31,478/-. On deducting the one-third, which is approximately Rs. 10,492/-, towards the personal expenses, the amount comes to Rs. 20,986/ per month. Thus, the annual income for the purpose of evaluating the compensation comes to Rs. 2,51,832/-. Considering the whole situation and surrounding circumstances of the life of applicants, I even reduce the multiplier from 9 to 7 and on applying this multiplier of 7, the net amount comes to Rs. 17,62,824/-. No interest shall be payable on this amount. This Court is not inclined to disturb the amount of Rs. 10,000/- on the score of los of consortium, Rs. 10,000/- towards the loss of estate and Rs. 10,000/- for the funeral expenses. Thus the total amount of compensation comes to Rs. 17,92,824/-.
Thus the AO No. 240/2017 of the insurance company is hereby allowed. Impugned award is modified to the extent indicated above. Insurance company shall deposit the remaining amount, if any. Registry shall remit the amount of compulsory statutory deposit along with the interest accrued on it to the Tribunal concerned.
5As regards the prayer for enhancement of compensation, I think this is wholly unjustified. Hence, AO No. 247/2017 filed by the claimants is hereby dismissed.
Let the LCR be sent back.
(Servesh Kumar Gupta, J.) Prabodh