The New India Assurance Company ... vs Vijay Prakash And Ors.
2017 Latest Caselaw 3567 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
Court No. - 17					          [A.F.R.]
 
Case :- FIRST APPEAL FROM ORDER No. - 498 of 2013
 
Appellant :- The New India Assurance Company Ltd. Dy. Manager Hazratganj.
 
Respondent :- Vijay Prakash and others
 
Counsel for Appellant :- Jitendra Narain Mishra
 
Counsel for Respondent :- R.K. Dubey
 

 
Hon'ble Dr. Devendra Kumar Arora,J.

Hon'ble Rang Nath Pandey,J.

(Delivered by Hon'ble Rang Nath Pandey J.)

1. Heard Shri Jitendra Narain Mishra, learned Counsel for the appellant and Shri R.K. Dubey, learned Counsel for respondent- The New India Assurance Company Limited.

2. The instant appeal under Section 173 of the Motor Vehicles Act, 1988 arises out of the Judgment and Award dated 31.01.2013 passed by the learned Motor Accident Claims Tribunal/ Special Judge, E.C. Act, Lucknow in Motor Accident Claim Petition No.69 of 2009 [Vijay Prakash and others Versus Upkar Singh and another], whereby the learned Tribunal has awarded a sum of Rs.17,77,500/- as compensation to the claimants in respect of the accident which took place on 15.01.2009 at about 9.30 AM, in which Kanchan Lata died due to negligent and rash driving of truck No.UP 53J 1905 by its driver.

3. It is said that on 15.01.2009 at 9.30AM, Kanchan Lata (deceased) was going from her house to the school and when she reached Gosaiganj road (Police Station Mohanlalganj), a truck no. UP 53J 1905 coming from Raibareli side hit the motorcycle of the deceased. It is also said that the truck was being driven in a high speed and due to the accident, Kanchan Lata received serious injuries on her person and died at the spot. It has come on record that at the time of the accident, the deceased was about 50 years old; was working as a Assistant Teacher in Jeevan Balika Vidyalaya and was earning Rs.25,000/- per month.

4. In respect to the aforesaid accident, the claimants filed a claim petition seeking a sum of Rs.69,30,000/- as compensation. The learned Tribunal, on the basis of the pleadings, and considering the evidence on record, awarded a sum of Rs.17,70,500/- as compensation with interest at the rate of 6% from the date of the application to the date of actual payment.

5. The factum of the accident is not disputed by the appellant.

6. The impugned Award dated 31.01.2013 has been challenged in the instant appeal by the appellant- Insurance Company on the ground that the learned Tribunal has erred in law in not considering the fact that one of the claimants has been given compassionate appointment while awarding compensation. According to him, in view of the settled law with regard to the purpose of award of compensation, the compassionate appointment given to the claimant-opposite party no.1 in lieu of death of his wife, was legally liable to be considered for the purpose of determination of compensation, since the income being drawn by the claimant-opposite party no.1, reduced the financial loss caused due to the death of his wife to a large extent.

7. The learned Tribunal committed manifest error of law in not appreciating that against the loss caused due to the death of the deceased, the claimants were entitled to loss of income only from the date of occurrence of the accident i.e. 15.01.2009 till the date of compassionate appointment of the respondent no.1.

8. The quantum of compensation awarded by the learned Tribunal is in derogation to the settled law that the compensation awarded by the Motor Accident Claims Tribunal should be ''just' and should not be bonanza, or, a source of profit to the claimant inasmuch as inspite of the fact that the claimant-opposite party no.1 is drawing income from the compassionate appointment, yet this monetary benefit, has not been considered while determining the compensation.

9. Refuting the allegations, learned counsel for the respondents has contended that the impugned award has been passed after appreciating the evidence on record and law on the subject. Therefore, there is no illegality or infirmity in the impugned judgment and the instant appeal is liable to be dismissed with exemplary cost.

10. We have considered the submissions of learned counsel for the parties and gone through the impugned Judgment and Award passed by the learned Tribunal.

11. The award of compensation under the Motor Vehicle Act and appointment given to the legal heir of the deceased under the service law are two different fields. The appointment given under the Dying-in-Harness Rules cannot be taken into consideration while determining the compensation under the Motor Vehicle Act. This issue has been considered in the case of Bhakra Beas Management Board Vs. Kanta Aggarwal and Others, in which the Hon'ble Apex court has relied upon its earlier decision rendered in the case of Helen C. Rebello Vs. Maharashtra S.R.T.C (1999 (1) SCC 90). In the said case, the Hon'ble Apex court came to the conclusion that compassionate appointment or any post-retiral dues given, cannot be counted towards compensation on account of the accidental death and so far as the accidental death is concerned, it cannot be said that the compensation received on account of said death is the amount earned either for himself or for his family.

12. In the case of National Insurance Company Limited Vs. Smt. Deepali Pal and others [2015 (33) LCD 1933], a Division Bench of this Court after considering various judgments of the Apex Court held in paragraph 27 as under:-

"27. Learned Counsel for the appellant has argued that the claimant's wife has been given compassionate appointment and, therefore, the said amount is to be deducted from the compensation awarded to the claimants but we find that the aforesaid argument of the learned counsel for the appellant cannot be sustained on account of two decisions of the apex court, wherein it has been held that if any person has been given post retiral benefits and compassionate appointment, then those benefits are not to be counted. The apex court in the case of Kanta Aggarwal (Supra) proceeded to rely upon the judgment in the case of Helen C. Rebello Vs. Maharashtra S.R.T.C., 1999(1) SCC 90, wherein the same principle has been laid down. In the said case, the apex court came to the conclusion that compassionate appointment or any post retiral dues given, cannot be counted towards compensation on account of accidental death and so far the accidental death is concerned, it cannot be said that compensation received on account of said death is the amount earned out of one's labour or contribution towards one's wealth, saving etc. either for himself or for his family, which such person knows under the law, has to go to his heirs after his death either by succession or under a Will said to be the ''pecuniary gain'."

13. It may be noted that the similar question came up for consideration before the apex court in the case of Vimal Kanwar and Others Vs. Kishore Dan and Others reported in 2013 (3) T.A.C. 6 (S.C.) wherein the Hon'ble Apex Court held as under:-

"The second issue is "whether the salary receivable by the claimant on compassionate appointment comes within the periphery of the Motor Vehicles Act to be termed as "Pecuniary Advantage" liable for deduction." "Compassionate appointment" can be one of the conditions of service of an employee, if a scheme to that effect is framed by the employer. In case, the employee dies in harness i.e. while in service leaving behind the dependents, one of the dependents may request for compassionate appointment to maintain the family of the deceased employee dies in harness. This cannot be stated to be an advantage receivable by the heirs on account of one's death and have no correlation with the amount receivable under a statute occasioned on account of accidental death. Compassionate appointment may have nexus with the death of an employee while in service but it is not necessary that it should have a correlation with the accidental death. An employee dies in harness even in normal course, due to illness and to maintain the family of the deceased one of the dependents may be entitled for compassionate appointment but that cannot be termed as "Pecuniary Advantage" that comes under the periphery of Motor Vehicles Act and any amount received on such appointment is not liable for deduction for determination of compensation under the Motor Vehicles Act."

14. Recently, once again, the question with regard to the deduction on account of giving compassionate appointment came up for consideration before the Apex Court in the case of National Insurance Company Ltd Vs. Ramrajsinh Bhagwansinh Zala & Ors (Civil Appeal No. 8867 of 2012 decided on 07.03.2017). The Apex Court after examining the scheme of Motor Vehicles Act and the view earlier taken by the Apex Court in the case of United India Insurance Company Ltd. & Ors Vs. Patricia Jean Mahajan & Ors, Vimal Kanwar (supra) and Reliance General Insurance Company Limited (supra) (which has been relied upon by the respondent) held as under:-

"18. In the present cases, the claimants were offered compassionate employment. The claimants were not offered any sum of money equal to the income of the deceased. In fact, they were not offered any sum of money at all. They were offered employment and the money they receive in the form of their salary, would be earned from such employment.

The loss of income in such cases cannot be said to be set off because the claimants would be earning their living. Therefore, we are of the view that the amount earned by the claimants from compassionate appointments cannot be deducted from the quantum of compensation receivable by them under the Act.

19. In the cases before us, compensation is claimed from the owner of the offending vehicle who is different from the employer who has offered employment on compassionate grounds to the dependants of the deceased/injured.

The Source from which compensation on account of the accident is claimed and the source from which the compassionate employment is offered, are completely separate and there is no co-relation between these two sources. Since the tort feasor has not offered the compassionate appointment, we are of the view that an amount which a claimant earns by his labour or by offering his services, whether by reason of compassionate appointment or otherwise is not liable to be deducted from the compensation which the claimant is entitled to receive from a tort feasor under the Act.

In such a situation, we are of the view that the financial benefit of the compassionate employment is not liable to be deducted at all from the compensation amount which is liable to be paid either by the owner/the driver of the offending vehicle or the insurer. Hence, we find no merit in these appeals and they are dismissed accordingly."

15. In view of the aforesaid discussions, the plea of the appellant that the Tribunal has erred in not considering the fact that one of the claimants has been given ''compassionate appointment', has no force in view of the law propounded in the aforesaid cases.

16. Accordingly, the judgment of the learned Tribunal is approved and the instant appeal is hereby dismissed.

Order Date :- 24.08.2017

GK Sinha

[Rang Nath Pandey, J.] [Dr. Devendra Kumar Arora, J.]