Kaushilya Bai & Ors. v. Ahmed Niyaji & Ors.

D.B.: Hon'ble Mr. Justice Abhay Manohar Sapre & Hon'ble Mr. Justice G. Minhaiuddin M.A.(C) No. 1224 OF 2011 APPELLANTS Kaushilya Bai and others VERSUS RESPONDENTS Ahmed Niyaji and others M.A.fCl No. 1225 OF 2011 APPELLANTS Sarla Bai and others VERSUS RESPONDENTS Ahmed Niyaji and others AND M.A.tC) No. 1226 OF 2011 APPELLANTS Santoshi Bai and others VERSUS RESPONDENTS Ahmed Niyaji and others MISCELLANEOUS APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988. Appearance : Mr. Gautam Khetrapal, Advocate for the appellants, in all the appeals. Mr. Vimlesh Bajpai, Advocate for the respondents No. 1 & 2, in all the appeals. Mr. N.K. Malviya, Advocate for the respondent No. 3, in all the appeals. ORDER (Passedon 03.12.2012) As per Abhay Manohar Sapre, J. The decision rendered in this M.A. (C) No. (1) 1224/2011 shall also govern the disposal of other (C) Nos. 1225/2011 and connected appeals being M.A. ^ '^-i-^».^ !:<.^^1 l ^- 1226/2011 because all these appeals arise out of common impugned award passed by the Claims Tribunal.

This appeal is filed by the appellants/claimants (2) under Section 173 of the Motor Vehicles Act, 1988 (for short "the Act") against the award dated 27/7/2011 passed by First Additional Motor Accident Claims Tribunal, Bilaspur (C.G.) (for short "the Claims Tribunal") in Claim Case No. 121/2010. By the impugned award, the Tribunal partly (3) allowed the claim petition filed by the claimants under Section 166 of the Act and awarded a total sum of Rs.5,41,227/- by way of compensation to the claimants for the death of Chhannu Lal in vehicular accident. So the question that arises .for consideration in (4) this appeal filed by the claimants (appellants) is whether any case for enhancement is made out in the award of compensation awarded by the Tribunal to the claimants and if so, to what extent? (5) Facts of the case are these:- Chhannu Lal was the railway employee. While in (6) service, he met with a vehicular accident and eventually died on 30.04.2010.

This led to filing of the claim petition by his legal representatives (appellants herein) under Section 166 of the Motor Vehicle Act out of which this appeal arises claiming compensation for his death before the Claims Tribunal. It was contested by the driver, owner and insurance (insured) offending vehicle on grounds statement. Parties adduced evidence. company (insurer) taken in the written By impugned award, the Claims Tribunal partly (7) allowed the claim petition and awarded to the claimants a ^ sum of Rs. 5,41,227/-. It was held that deceased was earning Rs. 12,831/- and his age was around 46-50 years. It was also found that claimants had received Rs. 7,07,600/- by way of ex-gratia payment from the railways for the death of Chhannu Lal and further had received a sum of Rs. 2,92,400/- from Railway which they had deposited with fhe Commissioner workman compensation under the provisions of the Workman Compensation Act of their own.

The Tribunal therefore while determining the compensation payable to the claimants deducted both these sums namely- the ex-gratia money ofRs. 7,07,600/- Rs. 2,92,400/- received under the Workman Compensation Act while determining the compensation. It is this determination which is impugned by the (8) claimants in this appeal. Submission of learned counsel (9) appellants (claimants) was essentially one. According to him, the Tribunal erred in deducting an ex-gratia payment of Rs. 7,07,600/- which was paid to the claimants due to untimely death of Chhannu Lal by his employer (Railway) while determining the compensation. Learned Counsel urged that this payment could not have been deducted being ex-gratia in nature. He therefore urged that if this amount had been excluded while calculating the compensation payable to the claimants, then the amount awarded to the claimants would be reasonably enhanced making it a just compensation payable to them.

He however, did not dispute the deduction made by the Tribunal in so far as it related to payment made under the Workman Compensation Act. In other words, according to him, it was rightly deducted from the total compensation payable to the claimants. In reply, the learned counsel for the respondents (10) supported the deduction of the ex-gratia amount from the ^ total amount of compensation payable to the claimants and contended that it was rightly deducted from the same calling no interference. Having heard the learned counsel for the parties (11) and on perusal of the record of the case, we are inclined to allow the appeal in part and modify the award impugned in the appeal. So the basic question involved in these appeals is (12) whether Tribunal was right in deducting a sum of Rs. 7,07,600/- which the claimants had received by way of ex-gratia from the Railways? Inother word, the question which arises for consideration in this appeal is whether ex-gratia money received by the family members of the employee who died in vehicular accident while in ser^ice is deductible from the total compensation payable to legal representatives under the provisions of the Motor Vehicle Act?

The question arose before the Supreme Court in (13) the case reported in [(1999) 1 SCC 90 (Helen C. Rebello (Mrs.) and others v. Maharashtra State Road Transport Corporation and another)] as to whether life insurance money of the deceased is to be deducted from the claimants' compensation receivable under the Motor Vehicle Act? The Supreme Court held that it can not be deducted while determining the compensation payable to it was held that such the claimants. In other words, amount is not liable for deduction or/and adjusted out of the total compensation payable to claimants under the Motor Vehicles Act. (14) While deciding this issue, their Lordship laid down following principle of law for guidance in Para 32:- ,^l'"v^%^ Y.:^ ^ this Act has "32. So far as the general principle of estimating damages under the comraon law is concemed, 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 hira but for the death with the "pecuniary advantage" which from whatever source coraes to hira by reason of the death.

In other words, it is the balancing of loss and gain of the clairaant 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 Vehicle Act, 1939. It to which there could be no is very clear, doubt that this Act delivers compensation to the clairaant only on account of accidental injury or death, not on account of any other death. Thus, pecuniary advantage accruing under deciphered, correlatirig with the accidental death. The compensation payable under the Motor Vehicles Act is on account of the pecuniary loss to the claiinant by accidental injury or death and not other forms of death. If there is natural death or death by suicide, including even death by serious illness, accident, flight not through frain, involving a raotor vehicle, it would not be covered under the Motor Vehicle Act.

Thus, the application of the general principle under the coramon law of loss and gain for the computation of compensation under this Act must correlate to this type of injury or death, the words "pecuniary advantage" from whatever source are to be interpreted to mean any form of it would dilute all death under this Act, possible benefits conferred on the clairaant and would be contrary to the spirit. of the law if the "pecuniary advantage?? resulting from death raeans pecuniary advantage coming under all forms of death then it will include all the assets mpveable, immovable, shares, bank accounts, cash and every ainount receivable under any contract. In other words, all heritable assets including is willed by the deceased etc. This both, possible conferment of economic security to the claimant by the deceased and fhe 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 iri raany 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 accidental. obliterate viz, If '^ ^ .'-•.-?'""'"'., ^:"1;A' ':;"r .4 ••i^/'

accidental death and the loss on account of accidental death. Thus, under present Act, whatever pecuniary advantage is received by the claimant, from whatever source, would only raean which comes to the claimant on account of the accidental death of death. The forras constitution of the Motor Accident Claims Tribunal itself under Section 110 is, as the section states: "......for the purpose of adjudicating upon compensation in respect of claims accidents involving the death of, or bodily injury to,.......". (15) Now coming to the facts of this case we find that is the policy of the railway to make the ex-gratia payment to the family members of every railway employee who dies untimely while in service regardless of the fact as to whether the death occurred to him in accident or other wise. In other words, whenever any railway employee dies while in service, then his legal representatives are paid some ex graita amount by the railways of their own as per their policy made in this behalf.