M/S Steel Authority Of India Ltd vs Smt Jijabai Vijay Sonone And 3 ...
2017 Latest Caselaw 3806 Bom

 fa685.08.J.odt                         1




       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 NAGPUR BENCH, NAGPUR


                      FIRST APPEAL NO.685 OF 2008


          M/s Steel Authority of India Ltd.,
          Durgapur Steel Plant,
          P.O. Durgapur 7213 203.
          Burdwan (West Bengal).       ....... APPELLANT

                                ...V E R S U S...

 1]       Smt. Jijabai Vijay Sonone,
          Aged 30 years, 
          Occ: Household.

 2]       Ku. Mamta Vijay Sonone,
          Aged 10 yrs., Minor.

 3]       Niraj Vijay Sonone,
          Aged 7 yrs., Minor.

 4]       Smt. Amrabai Sakharam Sonone,
          Aged 60 years, Occ: Household.

         Nos.2 and 3 minors through next
         friend mother Smt. Jijabai Vijay
         Sonone, All r/o Talaswadn,
         Tq. Malkapur, 
         District Buldana. (M.S.)                ....... RESPONDENTS
 -------------------------------------------------------------------------------------
 Shri H.A. Deshpande, Advocate for Petitioner.
 Shri P.R. Puri, Advocate for Respondent Nos.1 to 4.
 -------------------------------------------------------------------------------------

 CORAM:            DR. (SMT.) SHALINI PHANSALKAR-JOSHI, J. 

th DATE: 30 JUNE, 2017.

ORAL JUDGMENT

1] This appeal takes an exception to the judgment

and order dated 22.02.2008 passed by Motor Accident Claims

Tribunal, Buldhana in M.A.C.P. No.16/2002, thereby

awarding the compensation of Rs.6,11,716/- inclusive of no

fault liability amount to the respondent-claimants.

2] Brief facts of the appeal can be stated as follows:

Respondent No.1 is the widow, respondent Nos.2

and 3 are children and respondent No.4 is the mother of

deceased Vijay Sonone. It is the case of respondents that

on 22.12.1998 at about 10:50 p.m. while the deceased was

on shift duty and returning home on a bicycle, while passing

some where in the area of M/s. Steel Authority of India

Limited, Durgapur Steel Plant, the dumper bearing No.TX 22

came from opposite direction in a rash and negligent manner.

It was driven by Krishnakant Karmarkar, the employee of the

appellant. The said dumper gave dash to the deceased. As a

result, deceased succumbed to the injuries sustained in the

dash. The incident was inquired into and investigated by

Durgapur Police Station and charge-sheet was filed against

the Driver of the dumper for the various offences punishable

under Section 279, 304-A and 427 of the I.P.C.

3] As per the case of the respondents, on account of

the untimely death of the deceased, they have lost their only

source of income. It was their contention that deceased was

working as a Constable in C.I.S.F. and getting salary of

Rs.5,500/- per month. Considering, his age of 30 years at the

time of accident, they claimed the compensation of

Rs.5,00,000/- from the appellant herein.

4] This petition came to be resisted by the appellant

herein raising the defence of total denial. It was denied that

the vehicle involved in the accident was the dumper owned

by the appellant and driven by its employee Krishnakant

Karmarkar. It was further denied that the cause of the

accident was rash and negligent driving of the dumper Driver.

Further it was denied that on account of the death of

deceased, respondents have lost their only source of income.

It was submitted that respondents have already received the

ex gratia payment of Rs.5,00,000/- from the employer, and

therefore, there is no question of the respondents suffering

any financial loss. Further it was contended that the amount

claimed by the respondent is exorbitant, unreasonable and

hence, on this count also the petition needs to be dismissed.

5] In support of her case respondent No.1 examined

herself and also led the evidence of one witness by name

Rajendrasingh Chavan from C.I.S.F. to prove the salary

certificate of the deceased Exh.46.

6] On appreciation of their evidence, the learned

Tribunal was pleased to hold that the involvement of the

vehicle of the appellant in the said accident and the

negligence on the part of the Driver of the dumper, is

sufficiently proved and accordingly held that the appellant

liable to pay compensation to the respondents.

7] As regards the quantum of compensation, the

Tribunal was pleased to hold, on the basis of the salary

certificate produced on record that deceased was earning the

income of Rs.4,406/- per month. Deducting 1/3rd thereof

towards the personal expenses of the deceased and then

applying the multiplier of '17' Tribunal held the respondents

entitled for the amount of Rs.5,99,216/- towards the financial

loss and then granting compensation towards the additional

head of Rs.5000/- for loss of consortium, Rs.5000/- for loss of

love and affection to respondent Nos.2 and 3 and Rs.2500/-

for funeral expenses, awarded the total compensation of

Rs.6,11,716/-.

8] This judgment of the Tribunal is challenged in the

appeal by learned counsel for appellant, by submitting that

there was absolutely no evidence produced on record before

the Tribunal to prove the involvement of the dumper or its

Driver in the said accident. It is urged that the Tribunal has

placed entire reliance on the F.I.R. and charge-sheet, which

was filed by Police against the dumper Driver. However, in

the criminal case filed against the dumper Driver, he was

acquitted and the copy of the judgment was also produced on

record, thereby proving that he was not involved in the said

accident. Secondly, it is submitted that mere involvement in

the said accident is not sufficient. It is also required to be

proved that there was negligence on the part of the dumper

Driver. Herein in the case, it is submitted that claimant has

admitted in her evidence that she was not an eye witness to

the incident. Hence, in the absence of evidence proving the

identity of the vehicle, and the negligence on the part of the

vehicle driver, the liability fixed by the Tribunal upon the

appellant to pay amount of compensation to the respondents

is totally unwarranted and needs to be set aside.

9] Second submission advanced by the learned

counsel for the appellants pertains to the payment of ex

gratia of Rs.5,00,000/- to the respondents. It is submitted

that the said amount was required to be deducted from the

amount of compensation arrived at by the Tribunal.

However, the Tribunal has not done so. Hence, on this count

also, interference is warranted in the impugned judgment.

10] In the light of these submissions advanced before

me the first question arising for consideration is whether the

respondents herein had proved not only the involvement, but

also the negligence on the part of the dumper Driver? If it is

proved, then only the appellant can become liable to

compensate the respondents.

11] The Tribunal in this respect has relied upon the

F.I.R. Exh.29, the charge-sheet Exh.31, seizure panchnama of

the dumper Exh.56 and the duty sheet of the dumper Exh.57

to hold the involvement of the dumper and the negligence of

the dumper Driver proved on record. Though it was brought

to the notice of the Tribunal that in the criminal case filed

against the dumper Driver Krishnakant Karmarkar, he was

acquitted by the Court of all the offences levelled against him,

in my considered opinion, the Tribunal has rightly considered

that in criminal trial as the witnesses turned hostile and not

supported the prosecution case, the dumper Driver was

acquitted, which can be seen from even the perusal of the

judgment of that case the copy of which is produced at

Exh.72. However, in civil proceeding the burden of proof is

not as strict as in criminal proceeding. In civil matters the fact

need not be proved beyond reasonable doubt, as is necessary

to be proved in criminal trial. In civil matters the party can

prove its case on the principle of preponderance of

probability. Hence, merely because the dumper driver was

acquitted in criminal case, his liability for accident in civil

cases cannot be wiped out. Herein the case it is not only the

F.I.R. and the charge-sheet, which were filed against dumper

Driver, that too after police carrying out necessary inquiry

and investigation, but the evidence on record shows that even

the C.I.F.S. had also carried out the requisite inquiry.

The copy of that inquiry report is produced on record at

Exh.52 and as deposed by the concerned witness from

C.I.S.F., Shri Udaysingh Chavan, it was transpired in the

inquiry that it was the dumper bearing No.TX 22, which was

involved in the accident and the cause of accident was its rash

and negligent driving, as it has given the dash to the

deceased. The inquiry papers are produced at Exh.52 along

with the complaint lodged to that effect against the dumper

Driver by the C.I.S.F. vide Exh.53.

12] Further it is pertinent to note that in her evidence

respondent No.1 has categorically deposed that the accident

has taken place in the premises of Durgapur Steel Plant of the

appellant and in the said premises, only the vehicles owned

by the steel plant are permitted to ply; other vehicles are not

permitted to enter into the premises of the said steel plant.

This par of evidence of respondent No.1 is not at all

challenged in her cross-examination and it has remained

unshattered on record. Her evidence also proves the seizure

panchnama Exh.56 of the dumper and duty sheet of its driver

Exh.57. Both these documents prove beyond reasonable

doubt the involvement of the dumper in the said accident.

They are further corroborated with the report of the inquiry,

conducted by C.I.S.F. proving that the cause of accident was

the rash and negligent driving of the dumper. Absolutely no

evidence is adduced on behalf of the appellant to controvert

this oral or documentary evidence adduced by the

respondents. It is needless to state that if the accidental death

has occurred in the premises of the appellant steel plant,

there must be several workers as witnesses to the accident

and hence appellant could have adduced their evidence.

The appellant could have examined the dumper Driver

Krishnakant Karmarkar to prove that it was the deceased,

who came all of a sudden in front of the dumper and hence

the accident took place. In the absence of such evidence on

record the inference is inevitable that respondents have

succeeded in proving that the cause of accident was rash and

negligent driving of the dumper, which was owned by the

appellant. Hence, the appellant cannot get itself absolved

from paying the compensation to the respondents.

13] As regards the authority relied upon by learned

counsel for appellant that of Gulab Chand Dhot v. P.N.

Aggarwal 1994 ACJ 887, the facts of the said case were totally

different, from the present case. In that case, in the F.I.R. the

number of the vehicle involved in the accident was given, but

it was found to be different F.I.R. also did not give the

particulars of the Driver. Even in evidence before the Court,

no such particulars were given and hence it was held that

there was no evidence to prove the identity of the vehicle or

the negligence on the part of such vehicle Driver. As against

it, in the instant case, there is more than sufficient evidence

on record to prove the involvement of the dumper owned by

the appellant and even the rash and negligent driving of the

dumper Driver.

14] The next issue raised for consideration is about

the quantum of compensation. In this respect, also there is

sufficient evidence produced on record by respondents, who

have examined the witness Rajendrasingh Chavan. He was

working in the C.I.S.F. unit and according to him, the

deceased was also working in the same unit and earning the

salary of Rs.4,406/- per month. The salary certificate is

produced on record at Exh.46. Having regard to the age of

the deceased, which was 30 years at the time of accident, the

multiplier applied by the Tribunal of '17' also cannot be

faulted with. Therefore, the total amount of compensation

towards the financial loss on account of the death of the

deceased, which is arrived at by the Tribunal, after deducting

1/3rd of his income towards personal expenses is

Rs.5,99,216/-.

15] The Tribunal has however, not added any amount

towards future prospects of the deceased. In view of the

judgment of Sarla Verma (Smt.) and others vs. Delhi Transport

Corporation and another reported in (2009) 6 SCC 121,

considering the age of the deceased 50% of the amount of his

monthly salary was required to be added as additional

income towards future prospects, which Tribunal has not

done. Now that amount needs to be added.

16] Moreover the amount awarded by the Tribunal

towards loss of consortium to respondent No.1, Rs.5000/-

and Rs.5000/- to respondent No.2 and 3 towards the loss of

love and affection and Rs.25,00/- towards funeral expenses is

quite meagre. Having regard to the recent decision of the

Apex Court in the case of Rajesh vs. Rajbir Singh 2013 ACJ

1403 (SC), that amount is to be enhanced to the tune of

Rs.1,00,000/- towards loss of consortium to respondent No.1

to Rs.1,00,000/- towards loss of love and affection to

respondent Nos.2 and 3 and Rs.50,000/- for the loss of love

and affection to respondent No.4 who has lost her son, and

Rs.25,000/- towards funeral expenses. Thus, the total amount

of compensation can be assessed as follows:

  Sr. No.    Heads                                             Calculation
  1.         Salary                                            Rs.4406/- per month

2. 50% of above (i) to be added as future (Rs.4406 + Rs.2203)= prospects. Rs.6609/- per month

3. 1/3 of deducted as personal expenses of Rs.6609 - 1652 = the deceased. Rs.4957/- p.m.

4. Compensation after multiplier of 17 is Rs.4957 x 12 x 17 = applied. Rs.10,11,228/-

5. Loss of love, affection and estate Rs.2,50,000/-

  6.         Funeral expenses                                  Rs.25,000/-
  Total compensation awarded                                   Rs.12,86,228/-




 17]              Now,   the   question   is   whether   the   amount   of

Rs.5,00,000/- which respondents have received as ex gratia

payment from C.I.S.F. is required to be deducted from the

amount of compensation or not? In the case of "Reliance

General Insurance Company Limited v. Shashi Sharma and

others" reported in (2016) 9 SCC 627, relied upon by learned

counsel for appellant the Full Bench decision of Madhya

Pradesh High in Smt. Kashmiran Mathur and others v. Sardar

Rajendrasingh and another AIR 1983 Madhya Pradesh 24, was

upheld. In this judgment of the Madhya Pradesh High Court

in para 26, it was held that, such ex gratia payment made by

the State to the widow of an employee of the Industries

Department where the deceased was in service is required to

be deducted as it is not a voluntary payment on charitable

grounds "on the occasion of the death", but it is an advantage

"by reason of the death". This amount cannot be claimed by

the dependent unless death of the employee has occurred.

This amount was therefore, deductible from the amount of

compensation.

18] The same view is adopted by the Apex Court in

the case of Reliance General Insurance, wherein the exact issue

framed for its consideration was, "whether the compensation

received from the Government under Haryana Compassionate

Assistance to the Dependants of Deceased Government

Employees Rules, 2006 (or otherwise) is to be deducted from

the total compensation, which is payable to the dependents of

the deceased who dies in the accident, while computing

financial benefits through ex gratia payments by the

Government?" While deciding this issue Apex Court took not

of its earlier decision in Helen C. Rebello v. Maharashtra SRTC

(1999) 1 SCC 90, and observed as under:

"18. The principle discernible from the exposition in Helen C. Rebello case is that if the amount "would be due to the dependants of the deceased even otherwise", the same shall not be dudctibile from the compensation amount payable under the 1988 Act. At the same time, it must be borne in mind that loss of income is a significant head under which compensation is claimed in terms of the 1988 Act. The component of quantum of "loss of income" inter alia, can be "pay and wages" which otherwise would have been earned by the deceased employee if he had survived the injury caused to him due to motor accident. If the dependants of the deceased employee, however, were to be compensated by the employer in that behalf, as is predicated by the 2006 Rules--to grant compassionate assistance by way of ex gratia financial assistance on compassionate grounds to the dependants of the deceased government employee who dies in harness, it is unfathomable that the dependants can still be permitted to claim the same amount as a possible or likely loss of income to be suffered by them to maintain a claim for compensation under the 1988 Act.

Thereafter perusing the scheme of 2006 Rules, it was held by

Hon'ble Supreme Court that under the said Scheme, the

dependents of the deceased Government employee were

suitably compensated by way of financial assistance in the

form of ex gratia payment on compassionate grounds and

hence it was held in para 26 that,

26. Indeed, similar statutory exclusion of claim receivable under the 2006 Rules is absent. That, however, does not mean that the Claims Tribunal should remain oblivious to the fact that the claim towards loss of pay and wages of the deceased has already been or will be compensated by the employer in the form of ex gratia financial assistance on compassionate grounds under rule 5(1). The Claims Tribunal has to adjudicate the claim and determine the amount of compensation which appears to it to be just. The amount receivable by the dependants/claimants towards the head of "pay and allowances" in the form of ex gratia financial assistance, therefore, cannot be paid for the second time to the claimants. True it is, that the 2006 Rules would come into play if the government employee dies in harness even due to natural death. At the same time, the 2006 Rules do not expressly enable the dependants of the deceased government employee to claim similar amount from the tortfeasor or insurance company because of the accidental death of the deceased government employee. The harmonious approach for determining a just compensation payable under the 1988 Act, therefore, is to exclude the amount received or receivable by the dependants of the deceased government employee under the 2006 Rules towards the head financial assistance equivalent to "pay and other allowances" that was last drawn by the deceased government employee in the normal course. This is not to say that the amount or payment receivable by the dependants of the deceased government employee under Rule 5(1) of the rules, is the total entitlement under the head of "loss of income". So far as the claim towards loss of future escalation of income and other benefits is

concerned, if the deceased government employee had survived the accident can still be pursued by them in their claim under the 1988 Act. For, it is not covered by the 2006 Rules. Similarly, other benefits extended to the dependants of the deceased government employee in terms of sub-rule (2) to sub-rule (5) of Rule 5 including family pension, life insurance, provident fund, etc., that must remain unaffected and cannot be allowed to be deducted, which, any way would be paid to the dependants of the deceased government employee, applying the principle expounded in Helen C. Rebello and Patricia Jean Mahajan cases." (Emphasis supplied)

19] Herein the case, the letter issued by the office of

the Deputy Inspector General of C.I.S.F. on 14.08.2003 is

produced on record, which states that as per Government of

India, Ministry of Personnel, Public Grievances & Pension,

Department of Pension and Pension Welfare Office

memorandum No.45/56/97-P&PW(C) dated 11.09.1998

while death occurring due to accident in the course of

performance of duties the next of kin (family member) of

Central Government Civilian Employees is eligible for ex

gratia lump sum compensation of Rs.5,00,000/-.

Accordingly, the compensation case was taken up and the

amount of Rs.5,00,000/- was paid to the respondent No.1 as

ex gratia payment.

20] Thus, it is clear that the ex gratia payment of

Rs.5,00,000/- is made to the respondent No.1 on account of

accidental death of the deceased while on duty. This fact is

not disputed by respondents also. Hence the said amount

needs to be deducted from the amount of compensation

payable to the respondents. After all, the amount of

compensation has to be 'just' which means fair, adequate and

reasonable. Compensation is not intended to be a bonanza or

a source of profit. It must be equitable, fair and reasonable.

Therefore, even if this criteria is applied then it becomes clear

that as the respondents have already received this amount of

Rs.5,00,000/- as ex gratia payment, due to accidental death

of the deceased while on duty, the said amount needs to be

deducted from the total amount of compensation payable to

the respondents. If such amount of Rs.5,00,000/- is deducted

from the total of Rs.12,86,228/- then respondents become

entitled for the compensation of Rs.7,00,000/- inclusive of no

fault liability amount of Rs.50,000/-.

21] As a result, the appeal is partly allowed.

22] The judgment and order of the Tribunal is

modified to the extent that appellant to pay compensation of

Rs.7,00,000/- to the respondent Nos.1 to 4 with interest at

the rate of 7.5% per annum from the date of application till

its realization.

23] Rest of the judgment of the Tribunal stands

confirmed. On the request of learned counsel for respondents,

respondents are permitted to withdraw the amount of

compensation, which is already deposited in the Court.

24] Appellant is directed to pay directly or to deposit,

the balance amount of compensation in the Court within the

period of eight weeks.

25] The appeal is disposed of in above terms.

JUDGE

NSN