Delhi High Court
National Insurance Co vs Mohd Arif & Ors on 21 August, 2014
Author: Jayant Nath
$~A-6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 21.08.2014
+ MAC.APP. 560/2012
NATIONAL INSURANCE CO ..... Appellant
Through Ms.Hetu Arora Sethi and Mr.Shravan
Sahney, Advocates
versus
MOHD ARIF & ORS ..... Respondents
Through None
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. Present appeal is filed by the appellant Insurance Company seeking to
impugn the Award dated 28.01.2012.
2. The brief facts are that on 22.07.2009 Smt.Zaitoon alongwith her
husband Sh.Jakir Hussain was going on a motorcycle when at District
Bagpat, UP they were hit by a truck. Both the persons fell down and
sustained injuries. Both husband and wife died in the accident. The claim
petition was filed by the six children, namely, respondents no.1 to 6 and the
Smt.Zahooran/mother of the deceased Shri Jakir Hussain being respondent
No.7.
3. Based on the evidence of parties the Tribunal concluded that the
accident took place due to the rash and negligent driving of the driver of the
offending vehicle.
4. Two claim petitions were filed one pertaining to the death of Sh.Zakir
Hussain and the second pertaining to the death of Smt.Zaitoon. In the first
claim petition pertaining to the death of Sh.Zakir Hussain the Tribunal
awarded total compensation of Rs.32,94,214/-. On the second claim petition
filed on account of death of Smt.Zaitoon the Tribunal awarded total
compensation of Rs.5,65,000/-.
5. The present appeal only pertains to the first claim petition filed due to
the death of Sh. Zakir Hussain.
6. Learned counsel appearing for the appellant has made only one
challenge to the Award. She submits that the late Shri Zakir Hussain was an
employee of MCD. He was working as a driver. On account of the
untimely death, the said MCD employed his son, namely, respondent No.1,
on account of compassionate employment. She submits relying upon the
judgment of the Supreme Court in the case of Bhakra Beas Management
Board vs. Kanta Aggarwal (Smt) and Others, (2008) 11 SCC 366 that the
benefits received of the compassionate appointment have to be taken into
account by the Tribunal while calculating compensation. She, however,
fairly concedes that there are some contrary observations made by the
Supreme Court in the case of Vimal Kanwar and Others vs. Kishore Dan
and Others, (2013) 7 SCC 476. But she submits that the second judgment
of Vimal Kanwar and Others vs. Kishore Dan and Others (supra) has been
passed ignoring the earlier orders of the Supreme Court.
7. In the case of Bhakra Beas Management Board vs. Kanta Aggarwal
(Smt) and Others, (supra) in paragraph 13 the Supreme Court observed as
follows:-
"13. Learned Counsel for the respondent supported the
judgment and additionally submitted that appeal of
Respondent No. 1 is pending. In normal course, when two
appeals are directed against the common judgment, both the
appeals should be heard by the same Bench of the High
court. But we find that the High Court lost sight of the fact
that the benefits which the claimant receives on account of
the death or injury have to be duly considered while fixing
the compensation. It is pointed out that respondent No. 1
was getting Rs. 4,700/- p.m. and a residence has been
provided to her and actually the compassionate appointment
was given immediately after the accident."
8. In Vimal Kanwar and Others vs. Kishore Dan and Others (supra)
the Supreme Court framed the relevant issue in paragraph 15.2 which read
as follows:-
"15.2 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."
9. The Court answered the issue in paragraph 21 as follows:-
"21. 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."
10. It is clear that in Bhakra Beas Management Board vs. Kanta
Aggarwal (Smt) and Others, (supra,) there is no specific reference to the
issue of compassionate employment. The observations were made that
benefits received on account of death have to be duly considered. In Vimal
Kanwar and Others vs. Kishore Dan and Others (supra) the specific issue
was regarding compassionate appointment and the Court answered that
receipt of the compassionate appointment would have no connection with
any benefits receivable by the deceased under the Motor Vehicles Act, 1988.
11. Apart from the legal position, even otherwise on facts it is not
possible to hold that respondent no.1 was a beneficiary of a compassionate
employment from the employer of his deceased father.
12. PW-1 namely respondent No.1 in his cross-examination states that he
is 12th class pass and he has joined MCD as a Peon on contract basis for a
period of five years. There is no suggestion put as to whether this
employment is on account of compassionate employment due to the
untimely death of his father. One also cannot lose sight of the fact that he is
a contractual employee of the MCD and is not a permanent employee.
13. It may also be noted that the Tribunal while assessing compensation/
loss of dependency has not taken respondent No.1 to be a dependent on the
deceased. The Tribunal took into account only five dependents including
four minor children.
14. In view of the legal position as above enunciated by the Supreme
Court in the case of Vimal Kanwar and Others vs. Kishore Dan and
Others (supra) and in view of the factual matrix above, in my opinion, there
is no ground to interfere with the Award of the Tribunal. The present appeal
is accordingly dismissed.
JAYANT NATH, J
AUGUST 21, 2014/n
