Madras High Court
S.Vijaya vs K.Karthikeyan on 13 September, 2012
Author: S.Vimala
Bench: S.Vimala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 13/09/2012 CORAM THE HONOURABLE MRS.JUSTICE S.VIMALA C.M.A.(MD)No.219 of 2012 1.S.Vijaya 2.S.Pattammal .. Appellants Vs 1.K.Karthikeyan 2.The Manager, Bajaj Allianz General Insurance Company Limited, Madurai. .. Respondents Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the order of award dated 25.05.2011 passed in MCOP No.79 of 2010 on the file of the Motor Accidents Claims Tribunal (Chief Judicial Magistrate), Thanjavur at Kumbakonam. !For appellants ... Mr.Lakshmi Narasimhan for Mr.T.V.Sivakumar ^For respondents... Mr.S.Srinivasa Raghavan for R2 - - - :JUDGMENT
The first appellant is the wife and the second appellant is the mother of the deceased, who filed a claim petition before the Tribunal, claiming a sum of Rs.15,00,000/- as compensation, in respect of the death of the deceased- Govindarajan. The deceased, aged about 58 years, retired as Postal Assistant and doing business in real estate earning a sum of Rs.30,000/- per month, died in an accident that took place on 04.11.2008. When he was driving a motorcycle bearing Registration No.TN-49-Z-9074, he was hit by a van bearing Registration No.TN-49- V-3364 and he died on the spot. Alleging loss of dependency and loss of love and affection, the claimants filed a claim petition.
2.The Tribunal awarded a sum of Rs.85,000/- as compensation with interest at 7.5% p.a., from the date of petition, as per the following break-up details:-
Rupees Funeral expenses 5,000/-
Transport expenses 5,000/- Loss of love and affection to the first appellant 50,000/- Loss of love and affection to the second appellant 25,000/- ---------------- Total.... 85,000/- =========
3. While considering the claim for loss of dependency, the Tribunal gave a reasoning that the deceased had been receiving 100% pension benefit out of which 70% of the pension benefit is received by the family as family pension and the balance of 30% has to be deducted towards personal expenses of the deceased, and therefore, there was no loss of income to the family and hence, there is no basis to award compensation for loss of dependency. Whether this finding of the Tribunal is justified or sustainable is the issue to be decided.
4. The basic principle in award of compensation is that what is lost on account of death of the deceased has to be awarded as compensation.
Irrespective of the mode of accident, even in case of natural death of the deceased the family pension would go to the benefit of the members of the family. Therefore, the receipt of family pension by the members of the family cannot be construed as a pecuniary advantage derived on account of the death of the deceased in the accident. Under such circumstances, while calculating the compensation for loss of dependency whether the receipt of family pension could be considered as part of compensation as equal to loss of dependency.
5. (a) On this issue, the contention of the claimants is that the pension and similar other benefits like Provident Fund and Gratuity are not the benefits which accrued on account of the death of the deceased, but those amounts are the benefits branching out of the contribution made by the deceased-employee himself from out of his salary at the time while he was alive and therefore, they are not to be taken into consideration for determining the loss of dependency. In other words, the pension is not a pecuniary benefit or advantage which is derived on account of the death of the deceased, but those pensionary payments are the payments which are made either to the deceased himself if alive or to the legal representatives after the death of the deceased, irrespective of the mode of death. It is also pointed out that the amounts that may be received by the victim or his dependents on account of the savings or other investments made by the deceased, should not go to the benefit of the tort-feasor / wrongdoer. To be brief, there must be correlation between the accidental death and the benefits accruing.
6. On the other hand, the learned counsel for the second respondent- Insurance Company submitted that the payment of pension and family pension stands on two different footing and what is lost by the family is the difference in the amount between the pension that was fully received by the deceased and the family pension, i.e., pension paid to the family after the death of the deceased, and the difference between these two amounts would be the loss to the family. Yes it is a loss to the family, but the question is whether the loss to the family was on account of the past contribution made by the deceased (of course while he was alive, but made available in future) or future contribution which would have been made by the deceased had he not lost his life. Obviously the answer is that it is the past contribution made by the deceased even though it is paid in the name of pension after his death. Therefore, the difference in the pension amount do not represent any pecuniary advantage that would have been available to the family by virtue of the death of the deceased.
5. (b) On the other hand, the learned counsel for the claimants pointed out that the family pension itself is a benefit branching off from the pension itself and therefore the pension is the genus of which the family pension is the species and therefore, the principle that is applicable to the pension would apply with equal force to the family pension also. Hence, the learned counsel contended that the difference between the pension and family pension cannot be the basic factor for determining the loss caused to the family. In order to support his contention, the learned counsel for the claimants relied upon the following decisions:-
(i) Lal Dei v. Himachal Road Transport, reported in (2007) 8 SCC 319.
In the above case, relying upon the decision reported in Helen C.Rebello v. Maharashtra S.R.T.C., reported in (1999) 1 SCC 90, it was held that the family pension is earned by an employee for the benefit of his family in the form of his contribution in terms of service conditions receivable by the heirs after his death and therefore, there is no correlation between these two and hence the family pension amount paid to the family cannot be deducted while calculating the compensation awarded to the claimants.
(ii) The Manager, National Insurance Co. Ltd. v. Padmavathy, reported in (2007) 3 MLJ 349.
As per this judgment, only statutory payments such as income-tax and professional tax and other contribution, which is not repayable by the employer are permitted to be deducted from the salary of the deceased person while determining the monthly income for computing the dependency compensation.
6. (b). On the other hand, the learned counsel for the second respondent- Insurance Company relied upon the following three decisions, in order to support the contention that family pension is deductible from the monthly income of the deceased for the purpose of arriving at the loss of dependency.
(i) National Insurance Company Ltd. v. Indira Srivastava & Others, reported in 2008 (1) TN MAC 166 (SC).
The decision of this Court reported in 2007 (1) TN MAC 507 in Manager, National Insurance Co. Ltd. v. Padmavathy & others, has been referred to in the above decision, wherein it has been held that any contribution made by the employee during his life time form part of the salary and they should be included in the monthly income while computing the dependency compensation. In the final part of the above judgment, the Hon'ble Supreme Court upheld the deduction made by the High Court on medical reimbursement and tax elements, but the Hon'ble Supreme Court decided that on account of the fact that the accident took place long back in the year 1997 and the High Court failed to take into consideration the future prospective increase in the income due to promotion or otherwise, it is not inclined to make any deduction from the salary of the deceased. This decision would not be helpful to the case of the respondents as the medical reimbursement and tax elements which were considered as deductible, has nothing to do with the pension which is held not deductible.
(ii) 1999 ACJ 344 (Parvati and others vs. Hollur Hallappa and others). Whether family pension amount is a pecuniary benefit arising out of the death of the deceased and deduction on account of family pension may be made while assessing compensation by multiplier method, was answered positively but with a rider that only if the pension factor has been taken note of, as part of monthly emoluments while calculating the loss of dependency. This decision will not at all be applicable to the facts of the present case, because of the rider appended to the decision itself and also because of the overruling of this decision by the Hon'ble Supreme Court. Therefore, it is clear that neither pension, nor family pension, nor the difference in amount between the pension and family pension could be deducted from the monthly salary of the deceased in order to arrive at loss of dependency.
7.In the absence of evidence on the monthly income, excepting the income by way of pension / family pension, how to assess the monthly income of the deceased, is the issue.
8.Even though in the petition it is stated that the deceased was doing real estate business and was earning a sum of Rs.30,000/- per month, there is no evidence to prove the income. According to the learned counsel for the Insurance Company, as the deceased had been an aged person retired from the Postal Department, he would not have earned, but the learned counsel for the claimants would submit that by virtue of habitual working, the deceased would not have been remaining idle and in fact he was earning by doing real estate business. Whether this contention can be accepted is the issue to be decided.
9.The former Prime Minister of Singapore and now the Minister-Mentor by name Lee Kuan Yew, speaking at the 30th Anniversary of Singapore National Employers Federation, appealed to the employers to offer re-employment to the workers when they reach the retirement age of 62. This appeal could not be fully implemented in India where unemployment problem is acute. But the reasons stated for such appeal is really appealing. He has pointed out that despite aches and pains, the people get money if they are engaged in some kind of work or employment and they start deteriorating if they are kept idle. "Many of our workers have preferred retirement and then they die early" - Few start saying "Oh! I am old" and start reading novels and playing golf or playing chess or scrabbles, well they are on the way down.
10.Work always make people happier and healthier and the learning process is also on, so long as we live long, we learn long. The day people stop learning, they start rusting. This advise by an elderly statesman who is a living proof, that life long learning, earning and peaceful living are the hallmarks of longevity, cannot be ignored. Only keeping this in mind, many of them go for part-time job, or weekend job or out-of-office hours job. In that case, the unemployment problem faced by the youth will not get aggravated by the retired employees opting to reemploy themselves. Normally re-employment on regular basis is given only for those who are considered to be highly efficient and indispensable and not for others. Therefore, the contention that even after retirement, the deceased had been employed and working / earning, cannot be discarded.
11.Therefore, in the absence of corroborative evidence regarding the income of the deceased, it is appropriate to take the monthly income of the deceased at Rs.3,000/- per month. Deducting 1/3rd towards personal expenses of the deceased, the contribution to the family will be Rs.2,000/- per month. The deceased had been aged 58 at the time of accident. Therefore, the appropriate multiplier would be 9, and the loss of dependency would be Rs.2000 x 12 x 9 = Rs.2,16,000/-. Awarding a sum of Rs.10,000/- towards funeral expenses, Rs.15,000/- towards loss of consortium to the first claimant and Rs.10,000/- towards loss of love and affection to the second claimant, the total compensation is quantified at Rs.2,51,000/-. The interest rate fixed by the Tribunal at 7.5% p.a., from the date of petition, remains unaltered.
12.In the result, the appeal is partly allowed enhancing the compensation from Rs.85,000/- to Rs.2,51,000/-. No costs.
13.The second respondent-Insurance Company is directed to deposit the above modified compensation of Rs.2,51,000/- with interest at 7.5% p.a., from the date of petition, less the amount already deposited, within a period of eight weeks from the date of receipt of a copy of this order. On such deposit being made, the claimants are permitted to withdraw the entire amount from the deposit.
KM To The Motor Accidents Claims (Chief Judicial Magistrate), Thanjavur at Kumbakonam.