Maya Devi And Ors. vs The Oriental Insurance Company ...
2011 Latest Caselaw 3388 Del

                                      UNREPORTED
*    IN THE HIGH COURT OF DELHI AT NEW DELHI


+                    MAC. APP. 595/2010


MAYA DEVI AND ORS.                               ..... Appellants
                              Through:   Mr. Kundan Kumar Lal,
                                         Advocate

                     versus

THE ORIENTAL INSURANCE COMPANY
LTD. AND ORS.                                       ..... Respondents
                              Through:   Mr. J.P.N.Shahi, Advocate
                                         for the respondent No.1


%                             Date of Decision : July 18, 2011

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
1. Whether reporters of local papers may be allowed
   to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?

                              JUDGMENT

: REVA KHETRAPAL, J.

1. The present appeal has been filed under Section 173 of the

Motor Vehicles Act, 1988 against the judgment and award dated

07.09.2009 passed by Motor Accidents Claims Tribunal, Dwarka

Courts, Delhi in MACT No. 889/08.

2. The brief facts leading to the filing of the present appeal are

that on 07.03.2006, one Shri Vijender Singh met with an accident

while travelling on his motorcycle bearing no. DL-9SN-4753

alongwith his wife, Smt. Maya Devi. The said Shri Vijender Singh

(hereinafter referred to as "the deceased") died as a result thereof,

whereas Smt. Maya Devi suffered injuries on her person. Two

separate claim petitions bearing MACT No.887/08 and 889/08 were

filed, the former by Smt. Maya Devi claiming compensation in

respect of the injuries sustained by her and the latter seeking

compensation for the death of her husband Shri Vijender Singh. Both

these petitions were filed against the driver, owner and insurer of the

offending vehicle, bearing No.HR-55-0936. The Tribunal decided

both the said petitions by a common judgment and award dated

07.09.2009, awarding a sum of ` 99,000/- and ` 18,85,000/- in

respect of Petitions No.887/08 and 889/08 respectively. The claimants

in the Petition No. 889/08, that is, the widow, children and father of

the deceased, being aggrieved by the manner of computation of

compensation by the Tribunal have filed the present appeal for

enhancement of compensation.

3. It emerges from the record of the Claims Tribunal that the

learned Tribunal, for the purpose of computing compensation payable

to the appellants, took into consideration the revised salary of the

deceased in the sum of ` 11,533/-, excluding therefrom the travelling

allowance of ` 600/-, that is, ` 11,533/- - ` 600/- = ` 10,933/-,

rounded off to ` 11,000/-. Adding thereto 50% towards the future

prospects of the deceased in consonance with the judgment of the

Supreme Court in the case of Smt. Sarla Verma & Ors. Versus Delhi

Transport Corporation and Anr. (2009) 5 SCR 1098, the Tribunal

arrived at a sum of ` 16,500/- as monthly salary of the deceased.

Thereafter, the Tribunal, observing that the widow of the deceased

had been given the job of a „Beldar‟ by the Delhi Jal Board on

compassionate grounds and was being given a monthly salary of `

3,500/- per month, deducted the said amount from the monthly salary

of the deceased. From the resultant amount of ` 13,000/-, the Tribunal

deducted 1/4th towards the personal expenses of the deceased and

calculated the monthly dependency of the appellants to be in the sum

of ` 9,750/- (that is, ` 13,000 - ` 3,250 = ` 9,750) and the annual

dependency in the sum of ` 1,17,000/-. Augmenting the said

multiplicand by the multiplier of 15, the total loss of dependency was

calculated by the Tribunal in the sum of ` 17,55,000/- (that is, `

1,17,000 x 15). In addition to this, the Tribunal also awarded a sum of

` 1,00,000/- towards the loss of love and affection, ` 10,000/-

towards loss of consortium, ` 10,000/- towards funeral expenses and

` 10000/- towards the loss of estate of the deceased. In all, the

Tribunal awarded a sum of ` 18,85,000/- to the appellants.

4. The only ground on which the aforesaid computation of

compensation has been challenged by the appellants is that the

Tribunal while calculating the loss of dependency of the appellants

erred in reducing the salary of the deceased by a sum of ` 3,500/-,

being the earnings of the widow from her employment as „beldar‟

(labourer) with the Delhi Jal Board. The learned counsel for the

appellants contended that the widow who used to be a housewife prior

to the death of her husband is now required to work extra hard to look

after her family. It is further contended by the counsel that there are

cases where the appointment on compassionate grounds is made after

the passing of the award by the Tribunal, in which situation the

person being given employment on compassionate grounds would be

better off, as the compensation granted to such a person would be

higher because no deduction would have been made by the Tribunal,

and as such it would lead to discrimination between two similarly

situated persons.

5. In support of his aforesaid contention, the learned Counsel for

the appellants has relied upon the decision of the Delhi High Court in

the case of National Assurance Company Ltd. Vs. Smt. Neelam and

Ors. 2009 ACJ 992. The learned counsel for the respondent-

Insurance Company, on the other hand, relied on the judgment of the

Supreme Court in the case of Bhakra Beas Management Board v.

Smt. Kanta Aggarwal and Ors. (2008) 11 SCC 366.

6. Before adverting to the said decisions cited at the bar it is

proposed first to refer to the celebrated judgment of the Hon‟ble

Supreme Court in the case of Helen C. Rebello & Others Versus

Maharashtra State Road Transport Corpn. & Anr. (1999) 1 SCC 90,

wherein the Supreme Court discussed the aspect of balancing of

pecuniary advantage accruing to the victims of motor accidents

against the pecuniary loss suffered by them to arrive at the

compensation payable to them by the tortfeasor (s) under the Motor

Vehicles Act, 1939. In the said judgment, the Apex Court explained

that since the compensation payable under the Motor Vehicles Act is

only on account of accidental injury or death and not on account of

any other death, the balancing can also be done only in respect of that

pecuniary gain/advantage which co-relates with the accidental injury

or death. If pecuniary advantage from whatever sources accruing to

the claimants are allowed to be set off against the compensation

payable to them under the Motor Vehicles Act, the same would dilute

all possible benefits conferred on the claimants and would be contrary

to the spirit of the law and the liability of the tortfeasor would be

unjustifiably reduced. The Court, in the said case, inter alia, made the

following apposite observations: (SCC Page Nos. 109-113)

"............................... The compensation payable under the Motor Vehicles Act is on account of the pecuniary loss to the claimant by accidental injury or death and not other forms of death. If there is natural death or death by suicide, serious illness, including even death by accident, through train, air flight not involving motor vehicle. would not be covered under the Motor Vehicles Act.

Thus, the application of general principle under the common law of loss and gain for the computation of compensation under this Act must co-relate to this type of injury or deaths, viz, accidental. If the words "pecuniary advantage' from whatever source are to be interpreted to mean any form of death under this Act it would dilute all possible benefits conferred on the claimant and would be contrary of the spirit of the law.

............................... Thus, it would not include that which claimant receives on account other form of deaths, which he would have received even apart from accidental death. .........................How can an amount of loss and gain of one contract could be made applicable to the loss and gain of another contract. Similarly, how an amount receivable under a statute has any co-relation with an amount earned by an individual. Principle of loss and gain has to be on the same place within the same sphere, of course, subject to the contract to the contrary or any provisions of law. Broadly, we may examine the receipt of the provident fund which is a deferred payment out of the contribution made by an employee during the tenure of his service. Such employee

or his heirs are entitled to receive this amount irrespective of the accidental death. This amount is secured, is certain to be received, 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 all. Similarly, family pension is also earned by an employee for the benefit of his 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 pension even otherwise than the accidental death. No co-relation between the two. Similarly, 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 insured 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 insurer indemnifies to pay the sum to the heirs, again in terms of the contracts for the premium paid.

Again, this amount is receivable by the claimant not on account of any accidental death but otherwise on insured's death. Death is only a step or contingency in terms of the contract, to receive the amount. Similarly any cash, bank balance, shares, fixed deposits, etc. though are all a pecuniary advantage receivable by the heirs on account of one's death but all these have 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 periphery of the Motor Vehicles Act to be termed as 'pecuniary advantage' liable for deduction.

When we seek the principle of loss and gain, it has to be on similar and same plane having nexus inter se between them and not to which, there is no semblance of any co-relation.

...............................For all these consideration we have no hesitation to hold that such High Courts were wrong in deducting the amount paid or payable under the life insurance by giving restricted meaning to the provisions of the Motor Vehicles Act basing mostly on the language of English statutes and not taking into consideration the changed language and intends of the legislature under various provisions of the Motor Vehicles Act, 1939. "

7. While this Court is conscious of the fact that the aforesaid

decision was rendered by the Supreme Court with respect to the

amount of life insurance policies received by the victims of motor

vehicular accidents, there is no denying the fact that the principles

enunciated therein would equally apply to a case where the widow or

any other family member of the person who died in a motor accident

has been given employment by the employer of the deceased on

compassionate grounds. Infact, this Court and other High Courts have

consistently applied the said principle to cases of compassionate

appointment.

8. The first of these cases is the decision of this Court in the case

of National Assurance Company Ltd. Vs. Smt. Neelam and Ors.

2009 ACJ 992, on which case the Appellant has also relied. In this

case, the Insurance Company had challenged the award of the

Tribunal and one of the grounds taken was that the family of the

deceased was getting family pension and the widow had been given

employment on compassionate grounds by the employer of the

deceased. This Court rejected the said contentions of the Insurance

Company and to support its decision, it referred to the decision

rendered by the Supreme Court in Helen C. Rebello (supra) and to

the following pertinent observations made by a Division Bench of the

Karnataka High Court in the case of Smt. Lalitha and Anr. Versus

Dashanbhat Haribansh Bhat and Others, AIR 1998 Kant 344:

"9. In our view, the Tribunal has gravely erred in denying the compensation under the head 'loss of dependency' to appellant 1 because of her appointment on compassionate grounds in the place of the deceased. The Tribunal erred in recording a finding that the salary earned by appellant 1 would compensate for the loss of salary which was being earned by the deceased. Whatever salary she got after employment was in lieu of services rendered by her. The same

does not mean that there was no loss of dependency. While the husband was earning she must have employed herself gainfully in the house-hold work. Salary earned by the deceased was in lieu of the services rendered by him and because of his death loss was caused to the estate resulting in loss of dependency to the appellants. Salary earned by appellant 1 was due to the work put in by her and could not be adjusted or treated as compensation for the loss of earning of the deceased. Salary earned by appellant 1 could not be equated with the compensation she was entitled to on account of the death of her husband. While determining the compensation under the head loss of dependency/loss to the estate, the Courts have to examine as to what was the loss caused to the estate of the deceased or to the dependants for the income which was contributed by the deceased to them. To the extent of loss of the income which was being contributed by the deceased to the dependants, the dependants are entitled to be compensated. Simply because one of the family members was given employment in the place of the deceased on compassionate grounds, the loss of dependency would not be off-set against the income earned by the dependents from the appointment given to him/her on compassionate grounds. The income earned by the dependant would be for the services rendered by him/her independently of the loss to the estate caused due to the death of the deceased."

9. In the case of National Insurance Company Ltd. Vs. Smt.

Manju Bala 2009 ACJ 1665, this Court again referred to the decision

of Helen C. Rebello (supra) and rejected the contention of the

Insurance Company that since the widow of the deceased had been

given employment on compassionate grounds, her resultant income

was liable to be deducted from the compensation granted to the

claimants under the head "loss of income". The following pertinent

observations were made:

"9. From the above decision it is clear that just because the wife had got employment on the compassionate ground, compensation is not liable to be reduced. Compassionate employment is given by the employer and the quantum of compensation has nothing to do with the same and it is altogether on a different ground the said thing is given. It has also to be remembered that even if husband dies a natural death, the wife would be entitled to employment under the compassionate scheme, if the scheme so provides or at the wish of employer."

10. It may be noted that similar view has been expressed by

various other High Courts including the Kerala High Court, the

Andhra Pradesh High Court and the Gauhati High Court inter alia in

the following cases:

(i) United India Insurance Co. Ltd. v. Bindu and Ors.

I(2007) ACC 688 (DB). (Kerala High Court)

(ii) APSRTC v. G. Jana Bai II (2001) ACC 716(DB).

(Andhra Pradesh High Court)

(iii) Kanika Hazarika and Ors. v. Sreeram Barthkumar

and Ors. 2002 ACJ 159(DB). (Gauhati High Court)

(iv) State of A.P. and Anr. v. K. Pushpalatha and Ors. IV

(2006) ACC 592. (Andhra Pradesh High Court)

(v) Laxmi Devi Dwivedi v. State of Madhya Pradesh 2005

ACJ 106 (DB). (Madhya Pradesh High Court)

11. Adverting now to the decision of the Supreme Court in the case

of Bhakra Beas (supra), relied upon by the Insurance Company, a

perusal of the said judgment shows that the widow of the deceased

had been provided compassionate appointment and she was getting a

salary of nearly ` 4,700/- and, in addition residence was also provided

to her. The Supreme Court on the facts of the case came to the

conclusion that the award as made was extremely high and the

concept of just compensation has been lost sight of. It held as under:

"14. In view of what has been stated above, the High Court's judgment is clearly unsustainable. However, the accident took place more than 14 years back and it would not be desirable to send the matter back to the Tribunal for fresh consideration. A sum of rupees five lakhs has been deposited vide this Court's order dated 1.11.2004. We are of the considered view that in view of the background facts, it is just and proper that the sum of Rupees five 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. It is for the Tribunal to fix the quantum of fixed deposit and the amount to be released to the claimants."

12. At this juncture, it deserves to be noted that the judgment in the

case of Helen C. Rebello (supra) was rendered by a Bench consisting

of two learned Judges. The decision in Bhakra Beas case (supra),

which was also rendered by a two-Judge Bench, does not purport to

and has nowhere, expressly or impliedly, overruled the judgment

rendered in the Helen C. Rebello's case (supra), and thus the

principles enunciated in the latter case still hold good. It is only on the

facts of the case that the court in the former case deemed it proper to

restrict the claim of the claimants, being the widow and the children

of the deceased, to a sum of ` 5,00,000/- already deposited by the

appellant, as against the sum of ` 8,48,160/- which had been awarded

by the Tribunal. This Court is, therefore, not inclined to accept as a

general rule that in every case where the widow or any family

member of the deceased has been given compassionate employment,

the resultant remuneration should be deducted from the monthly

dependency of the claimants. [See also the case of Reliance General

Insurance Co. Ltd. v. Urmila Devi & Ors. (2009) 4 AWC 4020

(DB)].

13. It must be understood that the salary as a result of

compassionate appointment is not given as charity or without having

to do anything in return. Rather, the person being given employment

on compassionate grounds is required to render services to the

employer, like any other employee. Further, it may also be mentioned

herein that even in the absence of being given compassionate

employment, the family members of the deceased may find it

necessary to take up an employment to earn their living. Should the

income in that case be reduced from the loss of dependency of the

claimants? The answer quite clearly is „No‟. The compassionate

appointment of a family member in the erstwhile establishment of the

deceased ought, therefore, to be treated at par with any other

employment that the said member might have to take up to meet the

financial crisis brought about by the death of the breadwinner of the

family. A compassionate appointment does not in any manner

compensate for the loss suffered by the claimants or reduce the

hardship caused to the claimants by the death of the deceased.

Furthermore, it can not be ignored in the instant case that the widow,

who was a housewife, will now be required to work twice as hard in

order to enable her to attend to her official functions and to look after

the family. Then again, while the deceased had been employed as an

Assistant Pump Operator earning a salary of ` 8,500/-, the widow was

appointed as a "beldar" at a salary of ` 3,500/- per month only, which

essentially means that she will be working as a labourer.

14. In the light of the above, the compensation awarded to the

appellants deserves to be re-computed without making any deduction

of the salary of the deceased from her employment with the Delhi Jal

Board. Accordingly, taking the salary of the deceased to be in the sum

of ` 16,500/- as assessed by the Tribunal, and deducting therefrom

one-fourth towards the personal and living expenses of the deceased,

the monthly dependency of the appellants comes out to ` 12,375/- per

month or ` 1,48,500/- per annum. Augmenting the said multiplicand

by the multiplier of 15 (as applied by the Tribunal and to which there

is no challenge by the appellants), the total loss of dependency

awardable to the appellants comes to ` 22,27,500/-. Adding thereto,

non pecuniary damages in the sum of ` 1,30,000/- as awarded by the

Tribunal the total compensation comes to ` 23,57,500/- (Twenty three

lakhs fifty seven thousand and five hundred only).

15. The award amount is enhanced accordingly. The respondent

No.1 is directed to deposit the award amount as enhanced within four

weeks from today with interest @ 7.5% per annum on the enhanced

amount from the date of filing of the petition till the date of

realisation.

16. The appeal stands disposed of in the above terms.

REVA KHETRAPAL (JUDGE) July 18, 2011