Judgment · High Court · 2012

t as well as Mr. A. Dutta, learned counsel for the respondent Nos. 1 and 2. Heard Mr. R. Goswami, learned counsel appearing for the appellan [2] This is an appeal under Section 173 of the Motor Vehicles Act, 1 988 by the claimants against the judgment and award dated 28.02.2011 as passed i n MAC Case No. 1148 of 2006 by the Motor Accident Claims Tribunal (FTC) No.1, Ka mrup, Guwahati. [3] The findings as regards the accident that occurred on 23.12.2005 for the rash and negligent driving of the vehicle (Motorcycle) bearing registra tion No. AS-01/X-9495, death of one Mon Mohan Bayon succumbing to the fatal inju ries as received in the said accident and the insurance cover of the offending v ehicle by the respondent No. 1 and 2 are not in dispute by either of the parties and as such those findings stand affirmed and a fresh appraisal thereof is avoi ded. [4] gainst the direction of the Tribunal which is reproduced for appreciation : The solitary question that has been projected in the appeal is a (cid:28)Thus, after considering the above aspects, it is seen that the annual income of the deceased was Rs. 1,62,204/- per annum and his contribution towards the fami ly was 1,21,653 per years. However, the deceased being a police officer under t he Government of Assam, his family will also be entitled to draw family pension to the extent one half of h is actual salary at the time of his death i.e. they are entitle to drawing Rs. 81,101/- per year as family pension. Therefore, if th e suitable multiplier applicable in the present case is 11, having regards to th e age of the deceased, then the total loss of dependency is {(1,21,653/-) - (Rs. 81101/-) X 11} = Rs. 4,46,072/- (Rupees Four Lakhs Forty Six Thousands and Seve nty two) only. In addition, the claimants will also be entitled to a sum of Rs. 5,000/- under the head of (cid:28)loss of estate (cid:29), Rs. 5,000/- for funeral expanses and Rs. 10,000/- as loss of consortium. The claimant side also produced medical vou cher bill for about Rs. 1,40,868/- (One Lakh Forty Thousands Eight Hundreds and Sixty-eight) only incurred as cost of medical treatment of the deceased before h is death. Thus the total compensation that can be awarded to the claimants will be Rs. 6,06,940/-, i.e. to say Rs. 6,07,000/- (Rupees Six lakhs Seven Thousands) only. Along with this amount, the claimants are also entitled to interest @ 6% per annum from the date of filling the claim petition i.e. from 08.05.2006 till full satisfaction of the award. (cid:29) Mr. R. Goswami, learned counsel appearing for the appellant subm itted that deduction of the family pension to the extent of Rs. 81,101/- per yea r is unsustainable in view of the settled position of law. The appellants are en titled to get the same added to the annual loss of dependency. To buttress the c ontention Mr. Goswami referred a decision rendered in Helen C. Rebello(Mrs) and Others Vrs. Maharashtra State Road Transport Corporation and Another, reported in (1999) 1 SCC 90 where the Apex Court after elaborate enunciation culled out t he law as under: Broadly, we may examine the receipt of the provident fund which is a def (cid:28)35. erred payment out of the contribution made by an employee during the tenure of h is service. Such employee or his heirs are entitled to receive this amount irres pective of the accidental death. This amount is secured, is certain to be receiv ed, 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 a ll. Similarly, family pension is also earned by an employee for the benefit of h is 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 pe nsion even otherwise than the accidental death. No corelation between the two. S imilarly, 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 ins ured 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 in surer indemnifies to pay the sum to the heirs, again in terms of the contracts f or the premium paid. Again, this amount is receivable by the claimant not on acc ount of any accidental death but otherwise on insured’s death. Death is only a s tep or contingency in terms of the contract, to receive the amount. Similarly a ny case, bank balance, shares, fixed deposits, etc. though are all a pecuniary a dvantage receivable by the heirs on account of one’s death but all these ha ve 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 peripher y of the Motor Vehicles Act to be termed as ’pecuniary advantage’ liable for ded uction. When we seek the principle of loss and gain, it has to be on similar a nd 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 which has no co-relation to the compensat ion computed as against tortfeasor 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 th e 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 thi s Act, he receives without any contribution. As we have said the compensation pa yable under the Motor Vehicles Act is statutory while the amount received under the life insurance policy is contractual. (cid:29)(emphasis supplied) The same reasoning has been followed in Lal Dei and Other Vrs. H imachal Road Transport; reported in (2007) 8 SCC 319 and in Mallika Datta and An r Vrs. Rakhi Paul and Ors. of this Court as reported in 2009 (4) GLT 947 where i t has been held that: (cid:28)(13) A Bench of five Judges of this Court in Saminder Kaur and Anr Vs. Union o f India and Anr. 1987 ACJ 7 held (ACJ p. 11 para. 110): (cid:28)11. We shall now take up question No. 1 relating to the permissibility of deduc tion of gratuity, family pension and other benefits attached to the service cond itions of an employee. When a Government servant retires, he becomes entitled to provident fund, pension and gratuity benefits. Provident fund, or pension, or g ratuity is the deferred payments of satisfactory service, savings and contributi ons of the deceased employee. These amounts his family would have in any case be en entitled to get whether the employee died a natural death or died in an accid ent. Therefore, they ought not to be taken into consideration for determining th e amount of just compensation, as they cannot be termed as pecuniary benefits. A s regards family pension, the window of a Government employee would be entitled to under the service conditions. We do not think that it is benefit received by the widow and the wrongdoer should be allowed to take advantage of the family pe nsion and gain by it (cid:29) (14) In the light of the above decisions, the said deductions in respect of the amount of family pension received by the claimant No. 1/appellant No. 1 cannot b e considered as a valid deduction in law and the same should not have been made by the tribunal. (cid:29) Mr. A. Dutta, learned counsel appearing for the respondent No. 1 and 2 however did not make any endeavor to contest the settle position of law i n his usual fairness. [5] On consideration of submissions as made by the learned counsel a ppearing for the parties, this Court finds it appropriate to set aside the said findings of the Tribunal. Accordingly, the amount of Rs. 81,101/- shall form par t of the loss of dependency. Thus, the compensation is required to be redrawn. T hus the loss of dependency comes to Rs. 13,38, 183/-. With the said sum the appe llant will be entitled a sum of Rs. 10,000/- for loss of estate, Rs. 5,000/- for funeral expenses and Rs. 10,000/- for loss of consortium in so far the appellan t No. 1 is concerned. The sum comes at Rs. 13,63,183/-, rounded off at Rs. 13,63 ,000/-. With the said amount, a sum of Rs. 1,40,868/- would further be added for medical expenses as incurred for treatment of the deceased. Thus total compensa tion comes to Rs. 14,98,868/-, rounded off at Rs. 15,00,000/-. The said amount s hall carry interest @ 6% p.a from the date of filing of the claim petition i.e. from 08.05.2006 till payment is made. Respondent Nos. 1 and 2 are directed to pa y entire awarded amount as modified within a period of two months from today in the Tribunal on equal proportion on deducting the sum, if any, as already paid. [6] nt as indicated above. For the reasons as aforesaid, this appeal stands allowed to exte [7] h. There shall be no order as to costs. Send down the LCRs forthwit