Divisional Manager vs Anita Devi & Others
2021 Latest Caselaw 1629 Jhar

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
            (Civil Miscellaneous Appellate Jurisdiction)
                   M.A. No. 291 of 2018
                            ........

Divisional Manager, MAGMA HDI, General Insurance Co. Ltd.

                                              .... ..... Appellant
                              Versus
Anita Devi & Others                          .... ..... Respondents

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
            (Through : Video Conferencing)
                                 ............
For the Appellant             : Mr. Alok Lal, Advocate.

For the Respondent Nos.1 to 4 : Mr. Sandip Kr. Burnwal, Advocate.

........

08/06.04.2021.

Heard, learned counsel for the appellant, Mr. Alok Lal. MAGMA HDI, General Insurance Co. Ltd. has preferred the instant appeal against the award dated 13.03.2018, passed by learned District Judge-IX-cum-M.A.C.T, Dhanbad, in Motor Accident Claim Case No.125/2016, whereby claimants namely, (1) Anita Devi, (2) Gobardhan Bhuia, (3) Pinki Kumari and (4) Rinki Kumari (claimant nos.2, 3 & 4 represented through their natural guardian mother, Anita Devi) have been awarded compensation to the tune of Rs. 71,94,175/- along with simple interest @ 6% per annum from the date of filing of the claim petition till realization of the award.

Learned counsel for the appellant has preferred the appeal on the ground, that while considering the computation of compensation, the learned Tribunal has considered 30% of the future prospect of the income of the deceased, but if a compassionate appointment is given to the family member of the deceased, future prospect is not applicable, as the same has been taken care of while granting compassionate appointment by the employer.

Learned counsel for the appellant has referred the judgment passed by the Apex Court in the case of Bhakra Beas Management Board vs. Kanta Aggarwal (Smt) and Ors., reported in (2008) 11 SCC 366. Paras-12 and 13 of which may profitably be quoted hereunder:-

"12. 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.

13. 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"

Learned counsel for the appellant has further submitted that the Insurance Company has been given right to recover the indemnified amount from the defendant no.1 i.e Sumant Kumar Singh, owner of the vehicle TATA LPT 2515 / Truck bearing registration No.JH-10L-9721 and no appeal has been preferred by the insured of the vehicle i.e. owner of the vehicle, as such, this right may remain intact in case the appeal is dismissed.

Learned counsel, Mr. Sandip Kr. Burnwal appearing for the claimants has submitted, that the submission made by learned counsel for the appellant is unfounded and contrary to the judgment passed by the Apex Court in the case of National Insurance Company Limited vs. Rekhaben and Ors. and National Insurance Company Limited vs. Ramrajsinh Bhagwansinh Zala and Ors., reported in (2017) 13 SCC 547, Paras-22 and 23 of which may profitably be quoted hereunder:-

"22. 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.

23. 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 dependants 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 tortfeasor 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 tortfeasor 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."

Learned counsel for the claimants has further submitted that Apex Court while deciding the case has taken note of Bhakra Beas Management Board (supra) in the aforesaid judgment, as such, this judgment squarely covered the issue in hand.

Learned counsel for the claimants has further submitted that this issue has also been taken note of in the case of Vimal Kanwar & Ors vs Kishore Dan & Ors, reported in (2013) 7 SCC 476 Para-20, which may profitably be quoted hereunder:-

"20. The second issue is "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." "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."

On the basis of such submission, learned counsel for the claimants, Mr. Sandip Kr. Burnwal has submitted that appeal preferred by Insurance Company may be dismissed.

After hearing learned counsel for the parties and on perusal of the impugned judgment and the judgments referred by the learned counsel for the parties, it appears that only dispute with regard to entitlement of future prospect to the claimants even after getting a compassionate appointment after death of the deceased. This Court consider the same and nothing more has been left out to be decided by this Court in view of the judgment passed by the Apex Court in the case of Rekhaben and Ors.(Supra) where the Apex Court has taken note of the situation in paras-22 and 23 and Vimal Kanwar & Ors (Supra) Para-20.

Under the aforesaid circumstances, the appeal preferred by the Insurance Company is dismissed in view of the Apex Court judgment, which has considered all the issues agitated in Bhakra Beas Management Board (supra) while passing judgment in National Insurance Company Limited vs. Rekhaben and Ors. and National Insurance Company

Limited vs. Ramrajsinh Bhagwansinh Zala and Ors.(Supra) and Vimal Kanwar & Ors vs Kishore Dan & Ors (Supra).

So far right of recovery is concerned, since no appeal has been preferred by owner of the offending vehicle against the right of recovery granted in favour of the Insurance Company, this Court restrain from interfering with the same, accordingly, the right of recovery given by the Tribunal to the Insurance Company from owner of the vehicle after indemnifying the award remains intact without any interference.

The statutory amount deposited by appellant-Insurance Company at the time of preferring the appeal shall be remitted to the learned Tribunal by the learned Registrar General within four weeks' from today, so as to indemnify part of the amount to the claimants and rest of the amount shall be indemnified by the Insurance Company to the claimants within a reasonable period as the accident is of dated 13.01.2016.

(Kailash Prasad Deo, J.) Jay/-