The New India Assurance Company ... vs Smt. Anjali Srivastava And Ors.
2018 Latest Caselaw 1932 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
AFR
 
Court No. - 3
 
Case :- FIRST APPEAL FROM ORDER No. - 1031 of 2013
 
Appellant :- The New India Assurance Company Ltd. Thru. The Dy.Manager Lko
 
Respondent :- Smt. Anjali Srivastava And Ors.
 
Counsel for Appellant :- Jitendra Narain Mishra
 
Counsel for Respondent :- Ambuj Kumar,Mohammad Saeed,Raj Priya Srivastava
 
Hon'ble Dr. Devendra Kumar Arora,J.

Hon'ble Abhai Kumar,J.

The Insurance Company has filed an application for recall of the order dated 6.3.2017 whereby the appeal was dismissed together with an application for condonation of delay.

On due consideration, delay is condoned and both the applications are allowed. The order dated 6.3.2017 is recalled and the appeal is restored to its original number.

The afore-captioned appeal has been filed by the Insurance Company under Section 173 of the Motor Vehicle Act against the judgment and award dated 30.3.2013 passed by the Motor Accident Claims Tribunal Barabanki, in claim Petition No. 329 of 2010; Smt. Anjali Srivastava vs New India Assurance Company whereby the Tribunal has awarded a sum of Rs. 18,29,720/- as compensation to the claimants for the death of Sri Umesh Kumar Srivastava in a motor accident.

The singular ground on which the impugned award has been challenged is that the opposite parties/claimants are being given family pension and further one of the opposite parties has already been offered appointment on compassionate ground, therefore, the amount of compensation is highly excessive and the above material facts have totally been discarded by the Tribunal.

As regard the payment of pensionary benefits to the family of the deceased, we would like to refer the case of Helen C. Rebello (Mrs.) and others v. Maharashtra State Road Transport Corporation & another, reported in (1999) 1 SCC 90, wherein the Apex Court held that Provident Fund, Pension, Insurance and similarly any cash, bank balance, shares, fixed deposits, etc. are all a "pecuniary advantage" receivable by the heirs on account of one's death but all these have no correlation with the amount receivable under a statute occasioned only on account of accidental death. Such an amount will not come within the periphery of the Motor Vehicles Act to be termed as "pecuniary advantage" liable for deduction.

In these circumstances, the assertion of the appellant that the Tribunal should have deducted the amount payabale to the family towards pension is misconceived and is rejected.

As regard the second assertion of the appellant that the Tribunal committed an error in not considering the vital fact that one of the dependents of the deceased has been given a compassionate appointment and as such, the loss of dependency could not be such as arrived by the learned Tribunal. In our opinion, the fact that one of the legal heirs of the deceased has been given employment on compassionate ground cannot be a relevant factor in considering the total amount of compensation for the loss suffered by the victim in a proceeding under the Motor Vehicles Act involving two vehicles where the employer has no role to play.

In this regard, it would be useful to refer some of the decisions rendered by the Apex Court and other High Courts. In the case of United India Insurance Co. Ltd. vs. Bindu & others reported in 2007 (57) ACC 688, a Division Bench of Kerala High Court, while dealing with the issue of loss of dependency vis-a-vis widow getting employment under Compassionate Scheme, held that merely because wife got employment under Compassionate Scheme, the compensation is not liable to be reduced. The Court was prompted to take such a view for the reason that had there been natural death of the husband, still the widow would have been entitled to employment under Compassionate Scheme.

In National Insurance Company Ltd. vs. Manju Bala and others reported in 2008 (19) FLR 181, referring to the decisions in cases of Kanika Hazarika & others vs. Sreeram Barthakur reported in 2003 ACJ 159 (guj), United India Insurance Co. Ltd. v. Bindu & others (supra) and A.P.S.R.T.C. vs. G. Jana Bai & others reported in 2001 (43) ACC 716 it was held that where a wife gets employment under Compassionate Scheme, the compensation payable is not liable to be reduced.

In United India Insurance Co. Ltd. and others v. Patricia Jean Mahajan and others, (2002) 6 SCC 281, the Supreme Court while not deducting the sum received on account of family pension and social security had in its mind that these payments had no co-relation between the compensation payable on account of accidental death and death on account of illness or otherwise. The Supreme Court emphasized that the principle of balancing between losses and gains must have some co-relation with the accidental death by reason of which alone the claimant had received the amounts.

Recently, the Hon'ble Supreme Court in the case of National Insurance Company Limited Versus Rekhaben and others [decided on 7th March, 2017] was considering the question as to whether the income of the claimants from compassionate employment is liable to be deducted from the compensation amount awarded by the Tribunal under the Statute.

The Apex Court after considering the provisions of the Motor Vehicles Act and the earlier decisions rendered in Helen C. Rebello [supra] United India Insurance Co. Ltd and others vs. Patricia Jean Mahajan and others (2002) 6 SCC 281 (2013) 7 SCC 476 and Reliance General Insurance Company Limited versus Shashi Sharma and others; (2016) 9 SCC 627 held that the amount earned by the claimants from compassionate appointment cannot be deducted from the quantum of compensation receivable under the Act. The relevant paragraphs reads 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 dependents 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."

Under these circumstances and in view of the various decisions, referred to above, where the legal heirs of the deceased get employment under compassionate scheme, the compensation payable is not liable to be reduced, so, no error can be found with the view taken by the Tribunal. Accordingly, the appeal is dismissed. Parties to bear their own costs.

Order Date :- 10.8.2018

NA/-