United India Insurance Co. Ltd. vs Smt. Geeta Devi And Others
2012 Latest Caselaw 2176 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 30
 

 
Case :- FIRST APPEAL FROM ORDER No. - 2147 of 2012
 

 
Petitioner :- United India Insurance Co. Ltd.
 
Respondent :- Smt. Geeta Devi And Others
 
Petitioner Counsel :- Saurabh Srivastava
 

 
Hon'ble Rajes Kumar,J.

Hon'ble Anil Kumar Sharma,J.

(By Hon. Anil Kumar Sharma, J.)

This is an insurer appeal challenging the award dated 31.01.2012 passed by M.A.C.T./Additional District Judge, Court No.3, Gorakhpur in M.A.C. no. 625 of 2009, whereby the compensation of Rs. 15,50,670/- have been awarded to Respondent Nos. 1 to 5 on account of death of 42 years' old railway-man Moti Lal.

It appears that on 10.10.2009 deceased Moti Lal was going from his house to attend his railway duty in Gorakhpur by Tempo UP-58T/1008 and when the Tempo reached Barhua at about 6.30 A.M. it turtled on account of rash and negligent driving of its driver. Several passengers including the Moti Lal sustained grievous injuries. They were taken to hospital Gorakhpur by the local police but Moti Lal succumbed to the injuries during transit. The claimants alleged that deceased Moti Lal was a Class-IV employee in railway and his monthly pay was Rs. 15,000/-. The claimants being the widow and children of the deceased filed claim petition for an award of Rs. 47.7 Lakhs. The FIR of the accident was lodged by the son of the deceased in P.S. Sahjanwa on 11.10.2009 against the driver of the aforesaid Tempo and the police after investigation submitted charge sheet against him. In support of the claim the claimants examined claimant no.1 Smt. Geeta Devi as PW-1, eye witnesses Krishna Nand Tiwari as PW-2, Mahendra Pratap Yadav as PW-3 and Rajeev Goyal as PW-4 to prove employment and income of the deceased and also filed several police papers, photo copy of the service book and pay slip of the deceased. The driver of the Tempo Sudhakar Bharti examined himself as DW-1.

We have heard learned counsel for the appellant at length and perused the impugned award and also the document filed by the appellant in support of appeal.

Learned counsel for the appellant has challenged the findings of the Tribunal with regard to quantum of compensation awarded by the Tribunal to Respondent Nos. 1 to 5. He has submitted that widow of the deceased is getting family pension; that son of the deceased has been given compassionate appointment under Dying-in-Harness Rules and the learned Tribunal has erroneously added 30 percent in the annual income of the deceased for future prospects. He has relied upon the cases of Bhakra Beas Management Board vs. Kanta Agarwal and others, 2008 (3) TAC 661 (SC) and Sunil Sharma and others vs. Bachitar Singh and others, 2011 (3) TAC 629 (SC).

In the facts of the case of Bhakra Beas Management Board (supra) the widow of the deceased got compassionate appointment on monthly salary of Rs. 4700/- and was also provided residence immediately after the accident. The Tribunal awarded compensation of Rs. 8,48,160/-, which was not disturbed by the High Court. In appeal before Supreme Court under its direction the employer deposited Rs. 5,00,000/-. On these facts the Hon'ble Court making reference to the cases of United India Insurance Company Ltd. and others vs. Patricia Jean Mahajan and others, (2002) (6) SCC 281, Gobald Motors Service Limited and others vs. R.M.K. Veluswami and others, 1962 (1) S.C.R. 929 and Helen C. Rebello vs. Maharashtra S.R.T.C., 1999 (1) SCC 90 has observed that High Court lost sight of the fact that the benefit which on account of death or injury have to be duly considered while fixing the compensation. In the background facts of the case the Hon'ble Court found it just and proper that sum of Rs. 5 lakhs already deposited shall be permitted to be withdrawn by the claimants in full and final settlement of the claim relatable to the death of the deceased. In the facts of the case the Hon'ble Court has only directed that the benefits being received by the claimant on account of death or injury should be duly considered. In the instant case it has come in the statement of PW-4 that the son of the deceased had been given compassionate appointment in the railway. The salary being drawn by the son of the deceased is only due to his services rendered to the department. Had the railway not given such appointment to him, he would have served anywhere else and this cannot be termed as a benefit arising out of the death of his father. However, in the facts of the instant case we find that the learned Tribunal has considered the above facts regarding employment of deceased's son on compassionate grounds, as it has lowered the multiplier for computing the compensation. The deceased was between age group above 45-50 years and for this age group multiplier of '13' had been prescribed in the 2nd Schedule of Motor Vehicles Act, but the Tribunal taking multiplier of '10' has carved out the amount of compensation payable to the claimants.

In the instant case undoubtedly the widow of the deceased is getting family pension. In this connection, it is important to note the observations of the Apex Court given in the case of Helen C. Rebello (supra). In para-36 the Hon'ble Court has observed that 'family pension is also earned by an employee for the benefit of his family in the form of his contribution in service in terms of the service conditions receivable by the heirs after his death. The heirs receive family pension even otherwise than the accidental death. No co-relation between the two.' It is further held that though it is pecuniary advantage receivable by the heirs on account of one's death but it has no co-relation with the amount receivable under the statute occasioned only on account of accidental death. Such an amount cannot come within periphery of the Motor Vehicles Act to be termed as 'pecuniary advantage' liable to deduct. Similarly in the case of Smt. Sarla Dixit and another vs. Balwant Yadav and others (Civil Appeal No. 5157/1992 decided on February 29, 1996 the Apex Court did not aprrove the deduction on account of family pension in working out compensation. A division bench of this Court in the case of Reliance General Insurance Company Ltd. vs. Smt. Urmila Devi and others, 2009(7) ADJ 575 (DB) repelling the argument advanced on behalf of the appellant did not give any benefit to the insurance company about family pension and engagement of the wife of the deceased in employment. Moreover the full Benches of Punjab and Haryana High Court in the case of Bhagat Singh Sohan Singh vs. Smt. Om Sharma and others, AIR 1983 Punjab & Haryana 94, the Madhya Pradesh High Court (Indore Bench) in the case of Smt. Kashmiran Mathur and others vs. Sardar Rajendra Singh and another, AIR 1983 Madhya Pradesh 24 and Karnataka High Court in the case of Smt. Parwati @ Baby and others vs. Hollur Hallappa and others, 1998 (1) TAC 14 (Karnataka) have taken similar view. Thus in our opinion the family pension being drawn by the widow of the deceased is not liable to be deducted from the amount of compensation awarded to the claimants.

As regards the addition of 30 percent for future prospects of the deceased the Tribunal has placed reliance on the case of Sunil Sharma (supra). Learned counsel for the appellant has tried to distinguish this case on the premise that in the case before the Apex Court the deceased was aged about 45 years and was a Class-III employee, so there is no parity of this case with the instant one. No doubt in the present case the deceased was Khalasi (Class-IV employee of N.E. Railway Gorakhpur) and was aged between 45-50 years but in our opinion the addition of 30 percent pay for calculating the amount of compensation as future prospects of the deceased is not excessive at all. The deceased was having 12 years of service and during this period his pay would have revised at least once apart from hike in D.A. every year which on average is 10 percent or more. It is noteworthy that in the case of Sarla Verma vs. Delhi Road Transport Corporation, reported in 2009(2)TAC 699 (SC) the Apex Court has laid down as a 'rule of thumb' with respect to addition in income due to future prospects observing that addition should be only 30 percent if the age of the deceased was 40-50 years. As such we find that learned Tribunal has not committed any illegality in adding 30 percent in income due to future prospects of the deceased for calculating just and reasonable compensation.

In view of what has been said and done above, we do not find any merit in the appeal which is accordingly dismissed. The statutory deposit of Rs. 25,000/- made before this Court be remitted back to the concerned Tribunal as expeditiously as possible.

Order Date :- 25.5.2012

Imroz