Jammu & Kashmir High Court

New India Assurance Co. Ltd vs Sehdev Singh And Others on 25 February, 2022

     HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
                      AT JAMMU
                                                 Reserved on 15.02.2022
                                                 Pronounced on 25.02.2022

                                              MA No. 433/2011(O&M)
                                              c/w
                                              MA No. 411/2011(O&M)
                                              MA No. 436/2011(O&M)

New India Assurance Co. Ltd.                   .....Appellant(s)/Petitioner(s)


                    Through: Mr. Rupinder Singh, Advocate in MA Nos.
                             433/2011 and MA No. 411/2011
                             Mr. Anil Gupta, Advocate in MA No.
                             436/2011
               Vs
Sehdev Singh and others                                    ..... Respondent(s)
                    Through: Mr. Anil Gupta, Advocate


Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
                               JUDGMENT

1. The two separate appeals bearing Nos. 433/2011 and 411/2011 have been

preferred by the appellant-Insurance Company against the judgment and

award dated 21.04.2011 passed by the Motor Accidents Claims Tribunal,

Kathua (hereinafter to be referred as the Tribunal) by virtue of which two

claim petitions one bearing file No. 11/CP, titled, „Sehdev Singh and

others vs Jasbir Singh and others‟ filed by the parents as well as siblings

of the deceased and the other bearing file No. 5/CP, titled, Reena Jasrotia

vs Jasbir Singh and others filed by the widow of the deceased, have been

decided and the appellant has been directed to pay compensation of Rs.

13,50,000/- along with interest of 7.5% per annum from the date of filing

of the claim petition till its realization to the respondents/claimants,

namely, Reena Jasrotia (widow), Sehdev Singh (father) and Smt.

Sudershna Devi (mother) in three equal shares.

2. Simultaneously, the claimant-Reena Jasrotia(widow) has also filed an

appeal bearing MA No. 436/2011 against the aforesaid award for proper

apportionment of the compensation as she claims to be entitled to 2/3rd of

the compensation awarded by the Tribunal.

3. In both the appeals, the appellant-Insurance Company has impugned the

award on the ground of quantum of compensation and it has been

submitted that the respondent-Sehdev Singh is a retired Government

servant drawing pension and respondent-Smt Sudershna Devi is his wife

and dependent upon him and as such, they are not entitled for

compensation and further that the respondent-Reena Jasrotia being the

widow of the deceased would be getting pension equivalent to the salary

of the deceased for the next seven years from the death of the deceased

but the learned Tribunal has not considered this aspect of the case.

4. Mr. Rupinder Singh, learned counsel for the appellant-Insurance

Company has vehemently argued that the father of the deceased was never

dependent as he was a retired Government servant getting pension and

further the widow of the deceased would be getting the pension equivalent

to the salary of the deceased for next seven years but the learned Tribunal

has not considered the said fact. He further submitted that the quantum of

compensation has not been correctly assessed.

5. Per contra, Mr. Anil Gupta, learned counsel for the claimant/respondent-

widow of the deceased has not raised the dispute with regard to the

quantum of compensation but he submitted that the respondent-Reena

Jasrotia has become widow in a young age of 22 years and further that the

father of the deceased is a retired Government servant and the mother of

the deceased is also dependent upon him, as such, the two-third of the

awarded amount be granted to the claimant-widow of the deceased.

6. Heard and perused the record.

7. Facts necessary for disposal of the present appeal are that the claim

petition was filed by the widow of the deceased-Davinder Singh for grant

of compensation on account of death of her husband in a road accident at

Kali Bari Chowk near NHW on 14.12.2005. The parents along with the

sister and brother of the deceased filed another claim petition for grant of

claim and both these claim petitions were clubbed and the learned

Tribunal framed the following issues.

"1. Whether the accident took place on 10.12.2005 at Kali Bari Chowk NHW Kathua due to rash and negligent driving of offending vehicle bearing registration No. PW 12 D 9477 by respondent No. 1 as a result of which the deceased Devinder Singh sustained fatal injuries? OPP

2. In case Issue No. 1 is proved in affirmative to how much compensation the petitioners are entitled to? OPP

3. Whether the driver of the offending vehicle wqs not holding a valid and effective driving license at the time of accident and it was being plied in contravention of the RC, RP and FC and as such, the insurance company is not liable to pay any compensation? OPR-3

4. Relief ."

8. The claimants examined PW Aman Sharma, PW Swarn Singh, PW Reena

Jasrotia and PW Sehdev Singh in support of their claims, however, no

evidence was led by the appellant-Insurance Company.

9. The main contention raised by the appellant-Insurance Company is that

the widow and parents of the deceased being the Legal Representatives of

the deceased would be getting family pension equivalent to the income of

the deceased for next seven years but it has not been considered by the

Tribunal. A perusal of the record reveals that no such plea was raised by

the appellant-Insurance Company in its response to the claim petition filed

by the claimants and further no such issue was framed by the Tribunal. A

perusal of the statement of PW Reena Jasrotia, widow of the deceased

reveals that she was not getting pension.

10. Rule 20(bbb) of Section B pertaining to Family pension provides as

under:

"Notwithstanding anything contained in sub-clause (bb) above, where a Government servant dies while in service after having rendered not less than 7 years continuous service, the rate of family pension admissible to the beneficiary of the deceased shall be equal to the pay last drawn by the deceased officer before his death. Pension at the enhanced rates equal to the last pay shall be payable for a period of 7 years from the date following the date of death of the Government servant or for period up to the date on which the deceased Government servant would have attained the age of superannuation whichever is earlier."

11. Thereafter vide SRO 94 dated 15.04.2009 following was provided by

virtue of clause 8.

"Provided that in respect of a Government servant who may die while in service on or after 1.7.2009 after having rendered not less than seven years continuous service, the family pension on enhanced rates equal to 50 % of the last pay drawn shall be payable to the family of the Government servant from the date of death of the Government servant for a period of ten years without any upper age limit. Thereafter, the family pension shall be payable at the ordinary rates."

12. Thus, the bare perusal of above mentioned rules reveal that the rule

providing for the grant of family pension equivalent to the last pay drawn

by the deceased employee for a period of 7 years has been replaced by

SRO 94, that provides that Government servant who may die while in

service on or after 1.7.2009 after having rendered not less than seven

years continuous service, the family pension on enhanced rates equal to

50 % of the last pay drawn shall be payable to the family of the

Government servant from the date of death of the Government servant for

a period of ten years without any upper age limit. Thus, both the rules

provide for the payment of family pension in the event of death of

deceased employee and this is not contingent upon the death of the

employee in motor accident alone but on other causes/reasons as well.

13. The Hon‟ble Apex Court in Sebastiani Lakra v. National Insurance Co.

Ltd., reported in (2019) 17 SCC 465 has held as under:

"12. The law is well settled that deductions cannot be allowed from the amount of compensation either on account of insurance, or on account of pensionary benefits or gratuity or grant of employment to a kin of the deceased. The main reason is that all these amounts are earned by the deceased on account of contractual relations entered into by him with others. It cannot be said that these amounts accrued to the dependants or the legal heirs of the deceased on account of his death in a motor vehicle accident. The claimants/dependants are entitled to "just compensation" under the Motor Vehicles Act as a result of the death of the deceased in a motor vehicle accident. Therefore, the natural corollary is that the advantage which accrues to the estate of the deceased or to his dependants as a result of some contract or act which the deceased performed in his lifetime cannot be said to be the outcome or result of the death of the deceased even though these amounts may go into the hands of the dependants only after his death."

14. Similar view has been taken by the co-ordinate bench of this Court in

"National Insurance Co versus Purna devi & Ors" reported in

2020(4)JKJ(HC) 188 in which it has been held as under:

"21. The legal position as enunciated in the aforesaid Judgment, to put it precisely, is that the pecuniary advantage, to be deducted from the loss of income while assessing the compensation claimed under the Motor Vehicles Act must be from a source which correlates to the injury or death arising out of a motor vehicle accident. The pecuniary advantage which is payable or derivable on account of death of an employee in harness whether or not such death is result of motor vehicle accident is not to be deducted from the loss of income. This principle has been followed by the Hon‟ble Supreme Court in its later judgments and also by this Court consistently."

15. Also there is no evidence on record that the claimants/respondents were

getting salary after the death of the deceased for seven years, as such, this

contention of the appellant-Insurance Company is devoid of any merit and

the same is rejected.

16. The learned Tribunal has considered the income of the deceased as Rs.

6199/- per month and it is not in dispute that the deceased was 30 years

old at the time of accident and the learned Tribunal has applied the

multiplier of 15 instead of 17.

17. As the deceased was getting the salary of Rs. 6200/- per month and the

same was required to be enhanced at the rate of 50% taking into

consideration the future prospectus, thus, the income of the deceased

would be Rs. 9300/- per month. As the deceased was having mother and

widow dependent, so one-third of the amount is to be deducted for his

personal expenses but the learned Tribunal has wrongly deducted one-

fourth. The multiplier applicable is 17, thus the loss of dependency would

be Rs. 12,64,800/-. So far as the loss of consortium is concerned, the same

is on higher side at Rs. 50,000/ and as such, the same is reduced to Rs.

40,000/-. Further no compensation has been granted with regard to the

funeral expenses as well as loss of estate. So as per judgment of the Apex

Court in National Insurance Company versus Pranay Sethi & Ors

reported in (2017)16SCC 680, Rs. 15000/- each is to be granted for

funeral expenses as well as for loss of estate Thus, the total compensation

would be as under:

               Loss of dependency:                       Rs. 12,64800/-
               Consortium:                               Rs.     40,000/-
               Funeral expenses:                         Rs.     15,000/-





                  Loss of estate                                Rs.      15,000/-
                  Total                                          Rs. 13,34,800/-

18. Now, the dispute is with regard to the apportionment of the compensation

between the claimants. It is pleaded in the claim petition filed by the

parents that the respondent-Sehdev Singh i.e. father of the deceased was

a retired Government employee and as such, he must be getting pension

after his superannuation. The learned Tribunal has apportioned the

compensation in three equal shares between the widow of the deceased

and parents of the deceased. As the appellant in one of the appeals (MA

No. 436/2011) has become widow in a young age and as such, besides

loss of consortium of Rs 40,000/-, she will be paid 50% of the

compensation instead of two-third as claimed by her and rest of the 50%

of the awarded compensation shall be shared equally by the parents of the

deceased. The compensation be released in favour of the claimants as