Smt.Reena Mishra v. Prabhawati Amogsidha Bansodo

I have heard Mr. Ajay Kumar, learned counsel for the appellants and Mr. Ashok Priyadarshi, learned counsel appearing for the respondent-Insurance Company. The issue raised by Mr. Kumar appearing for the appellants seeking enhancement in the compensation amount, is that the Tribunal while assessing the compensation has committed three errors namely; (a) It has not taken into account the element of future prospects. (b) It has also not taken into account the income tax paid by the deceased, and (c) It has made deductions towards C.C. allowance of Rs. 335/- and conveyance allowance of Rs. 400/- from the salary amount which is impermissible in law. Learned counsel in support of his submissions has relied upon the following judgments: (a) (1994) 2 SCC 176 (General Manager, Kerala SRTC Vs. Susamma Thomas & Ors.) paragraphs 18 and 19. (b) (1996) 3 SCC 179 ( Sarla Dixit & Anr. Vs. Balwant Yadav & Ors.) 4 (c) (1983) ACJ 409 (Gujrat) (Arunaben & Ors.

Vs. Mahmoodbai Imamali Kaji & Ors.) (d) (1990) ACJ 523 (Bombay) (Maharastra State Road Transport Corporation Vs. Tulsabai Tukaram Kadave & Ors.) (e) (2002) ACJ 502 (A.P.) (Andhra Pradesh State Road Transport Corporation Vs. G.Jana Bai & Ors.) (f) (2003) ACJ 159 (Gauhati) (g) (2013) 7 SCC 476 (Vimal Kanwar & Ors. Vs. Kishore Dan & Ors.) Learned counsel on strength of judicial pronouncements, has submitted that even when the law stands well settled right since 1994 on the issue of addition of a component towards future prospects while computing compensation amount, the Tribunal has failed to take note of this settled legal position. With reference to the judgment of the Supreme Court rendered in the case of Sarla Verma (supra) learned counsel with particular reference to paragraph 24, has submitted that an addition of 50% of the actual salary is to be added towards future prospects where the deceased is in a permanent job and is below 40 years.

He further submits that the Supreme Court in the same 5 paragraph has also held that the term „actual salary‟ would mean salary less tax with no further deductions. He thus made a short submission that in view of the legal position settled under paragraph 24 of the judgment passed in the case of Sarla Verma (supra), the Tribunal has committed serious error in not making any addition towards future prospects and not making any deductions towards income tax while making deductions towards C.C. allowance and conveyance allowance which is not permissible. Mr. Ajay Kumar, has submitted that claimants on their own have made a calculation of the compensation amount as per their understanding of the legal position and which is on record of the proceedings in I.A. No. 5149 of 2013. He submits that according to the calculations made by the claimants, they are entitled to compensation of Rs. 28,20,600/- which takes note of the addition towards future prospects, deductions towards income tax and personal expenses of the deceased as well as additions towards consortium and funeral expenses. The arguments of Mr. Ajay Kumar has been contested by Mr. Priyadarshi learned counsel appearing for the Insurance Company. He submits that following the award dated

14.10.2004/1.11.2004, an execution case was filed by 6 claimants giving rise to Execution Case No. 3 of 2005 and following which the entire compensation amount together with interest amounting to Rs. 25,10,509/- was paid on 21.9.2005. It was submitted that a dispute being raised by the claimants as to the quantum, a further amount of Rs. 1,34,655/- was paid on

11.3.2010. It was thus sought to be submitted that whatever grievance was raised by the claimants stands redressed and the claimants having accepted the amounts without any protest, they cannot be permitted to raise fresh issues. Learned counsel with reference to the judgment of the Supreme Court reported in AIR 2003 SC 2232 (M/s Tamil Nadu State Transport Corporation Vs. Natrajan) and AIR 2008 SC 3118 (Bhakra Beas Management Board Vs. Smt. Kanta Aggarwal & Ors.) submitted that there should be a balance between the pecuniary loss suffered and the pecuniary advantage gained by a claimant so as to arrive at a just and fair computation of the compensation amount and that such assessment of compensation has to be with the object to compensate the loss suffered and not to be treated as a bonanza. It was submitted that the deceased was an employee of the respondent Insurance Company and thus apart from the terminal benefits provided by the Company and in addition to the compensation assessed by the Tribunal, the Insurance Company 7 has also provided the widow with a compassionate appointment.

He further submitted that the deceased was holding a post of an Administrative Officer and any further promotion to the post of Assistant Manager is by way of selection, meaning thereby the deceased may or may not have qualified for further promotion. Mr. Priyadarshi, learned counsel Insurance Company sought to contend that as there is an element of uncertainty in a case of promotion by selection and coupled with the fact that the widow has been provided with a compassionate appointment, the addition towards future prospects if any, stands satisfied. I have heard learned counsel for the parties and I have perused the materials on record. There is no contest on the factual position. The judgment impugned reflects no additions towards future prospects, no deductions towards income tax, while making deductions towards C.C. allowance and conveyance allowance. The only aspect which requires adjudication is whether further promotion being a fortuitous circumstance, the widow being provided with compassionate appointment would satisfy the legal position settled by the judicial pronouncements in respect of future prospects.

The answer is plain and simple in the negative. The 8 situation does not satisfy the legal position settled under the judicial pronouncements. Whereas a compensation payable under the Motor Vehicles Act, 1988 is on the assessment of a pecuniary loss suffered by the claimants due to an accidental injury or death, an appointment on compassionate grounds is governed by the service conditions governing the deceased and has no correlation whatsoever with a computation of compensation under the Motor Vehicles Act. The two benefits being governed under two distinct laws, it cannot have an overlapping effect. My conclusions are strengthened by the opinion expressed by the Supreme Court in a judgment rendered in the case of Helen C.Rebello & Ors. Vs. Maharastra State Road Transport Corporation & Anr. reported in (1999) 1 SCC 90. The Supreme Court while accepting that the pecuniary loss suffered by a claimant has to be ascertained by balancing the loss of future pecuniary benefits to the claimant with the pecuniary advantage from whatever source derived by them but while holding as such, the Supreme Court in paragraph 33 of the judgment has clarified that any such pecuniary advantage which has no correlation to the accidental death for which compensation is computed and which would have come to the claimant even otherwise can not be construed to be the “pecuniary advantage” liable for deduction.

Relevant extract of the judgment 9 is reproduced hereinbelow: “32 received by .……………..In our considered opinion, the general principle of loss and gain take 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 accidental death. the present Act, whatever Thus, under pecuniary advantage claimant, from whatever source, would only mean which comes to the claimant on account of the accidental death and not other forms of death. The constitution of the Motor Accident 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 injury to,………..” the death of, or bodily

Thus, it would not include that which the claimant receives on account of other forms of deaths, which he would have received even from accidental death. Thus, such pecuniary advantage would have no corelation to the accidental death for which compensation is computed. received or Any amount receivable not only on account of the accidental death but that which would have come to the claimant even otherwise, could not be construed to be the “pecuniary advantage”, liable for deduction………”

This is based on the principle that the claimant for the happening of the same incidence may not gain twice from two sources………..” An appointment on compassionate ground is certainly not a benefit accruing under the Motor Vehicles Act and thus the said aspect cannot be a hamper for consideration of the claim of the appellants for additions towards future prospects. In fact the very 10 issue of compassionate appointment was considered by the Supreme Court in the Case of Vimal Kanwar reported in (2013)7 SCC 476 and it was held in paragraphs 20 and 21 as follows: is “whether claimant on “20. The second the salary receivable by compassionate appointment comes within the periphery of the Motor Vehicles Act to be termed as „pecuniary advantage‟ liable for deduction”. 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.