Smt.Chanda Devi And Ors vs Charanjeet Singh And Ors
2021 Latest Caselaw 12837 Raj

(1 of 7) [CMA-117/2012]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 117/2012

1. Smt. Chanda Devi w/o Late Shri Kishna Ram, aged about 44 years

2. Shri Bhagirath s/o Late Shri Kishna Ram, aged about 26 years

3. Simla @ Suman d/o Late Shri Kishna Ram, aged about 23 years

4. Ram Pratap s/o Late Shri Kishna Ram, aged about 22 years All by caste Nai, r/o House No. 146, Meghwal Basti, Jegania Bibawatan, Tehsil Ratangarh Dist. Churu

----Appellants Versus

1. Shri Charanjeet Singh s/o Shri Surat Singh, by caste Jat Sikh, r/o Village and Dakkhana Jiyowala Tehsil & District Tarantaran, Punjab

2. Shri Satish Kumar Arora s/o Shri Deshraj, by caste Arora, r/o 4 H Sitaram Building, Palton Road, Mumbai. At present 105 H Block, Sri Ganganagar

3. Shri Rakesh Kumar Jasuja s/o Shri Bhagwandas, by caste Arora, r/o 167 Nai Dhan Mandi, Sri Ganganagar. Another Address 90, Agrasen Nagar, Sri Ganganagar.

4. The New India Insurance Co. Ltd. through its branch Manager, Sri Ganganagar.

                                                                ----Respondents


For Appellant(s)         :     Mr. Prashant Panwar on behalf of Mr.
                               Rajesh Panwar
For Respondent(s)        :     Mr. Sunil A. Vyas

HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

Judgment

17/08/2021

The present appeal has been preferred by the appellants-

claimants against the judgment and award dated 27.09.2011

passed by Motor Accident Claims Tribunal, Sri Ganganagar in

Claim Case No. 127/2007 whereby, the learned Tribunal awarded

(2 of 7) [CMA-117/2012]

a sum of Rs. 2,41,684/- in their favour on account of the death of

Kishna Ram in the accident which occurred on 05.11.2006.

Learned Tribunal after framing the issues, evaluating the

evidence on record and hearing the learned counsel for the parties

decided the claim petition of the appellants-claimants.

Learned counsel for the appellants-claimants submitted that

the finding of the Tribunal on Issue No. 2 is erroneous as the total

monthly income of the deceased Kishna Ram was Rs. 10,668/-

whereas the Tribunal wrongly deducted the amount of Rs. 5,723/-

which he was getting as pension, from his total monthly income.

He submitted that the pension amount cannot be deducted from

the total monthly income of the deceased while computing the

award. To buttress his arguments, learned counsel for the

appellants-claimants has relied upon the judgment of Hon'ble the

Supreme Court in the case of Vimal Kanwar & Ors. vs. Kishore

Dan & Ors. reported in 2013 R.A.R 118 (SC).

He further submitted that no amount towards loss of future

prospects was awarded by the Tribunal to the appellants-

claimants. Since the deceased was 45 years of age at the time of

accident, learned counsel submitted that amount towards loss of

future prospects is liable to be awarded to the appellants-

claimants in view of the judgment of Hon'ble the Supreme Court in

the case of National Insurance Company Ltd. vs. Pranay

Sethi reported in (2017) SC 5157.

Learned counsel for the appellants-claimants also submitted

that despite there being evidence on record showing that there

are total four dependents of the deceased, the Tribunal only

deducted 1/3rd amount to be spent on the deceased himself,

whereas it should have been a deduction of 1/4th amount of total

(3 of 7) [CMA-117/2012]

income. He further submits that although the son of the deceased

Bhagirath is major, but he was dependent on the income of the

deceased.

Per contra, the learned counsel for the respondent-Insurance

Company supported the judgment of the Tribunal dated

27.09.2011 and submitted that the finding on Issue No.2 does not

suffer from any infirmity as the Tribunal, while computing the

income of the deceased, rightly deducted the pension of the

deceased from his total monthly income. He further submitted

that the compensation awarded in the present case is a 'just

compensation' and it does not warrant any interference by this

Court.

He also submitted that it has come on record in the cross

examination of Chanda Devi that the major son of the deceased,

namely, Bhagirath is an agriculturist and is involved in the work of

farming and, therefore, he was not dependent on his deceased

father. He, therefore, submitted that Tribunal has rightly deducted

the amount to the extent of 1/3rd of total income.

I have considered the submissions made at the Bar and have

gone through the judgment dated 27.09.2011 as well as relevant

record of the case.

The finding of the Tribunal on Issue No.2 inasmuch as

deducting the pension amount of the deceased from the total

monthly income is erroneous as the income towards the pension is

also an income of the deceased and the same was being utilized

for his personal and other domestic purposes, therefore, deduction

of the same from the total income is incorrect.

On this issue, Hon'ble the Supreme Court in the case of

Vimal Kanwar (supra) held as under :-

(4 of 7) [CMA-117/2012]

"19. The first issue is "whether Provident Fund, Pension and Insurance receivable by claimants come within the periphery of the Motor Vehicles Act to be termed as "Pecuniary Advantage" liable for deduction." The aforesaid issue fell for consideration before this Court in Helen C. Rebello (Mrs) & Ors. vs. Maharashtra State Road Transport Corporation & Anr., reported in (1999) 1 SCC 90. In the said case, this Court held that Provident Fund, Pension, Insurance and similarly any cash, bank balance, shares, fixed deposits, etc. are all a "pecuniary advantage" receivable by the heirs on account of one's death but all these have no correlation with the amount receivable under a statute occasioned only on account of accidental death. Such an amount will not come within the periphery of the Motor Vehicles Act to be termed as "pecuniary advantage" liable for deduction. The following was the observation and finding of this Court:

"35. 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 correlation 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 the 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, the insurer indemnifies to pay the sum to the heirs, again in terms of the contract for the premium paid. Again, this amount is receivable by the claimant not on account of any accidental death but otherwise on the 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

(5 of 7) [CMA-117/2012]

have no correlation 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 a similar and same plane having nexus, inter se, between them and not to which there is no semblance of any correlation. The insured (deceased) contributes his own money for which he receives the amount which has no correlation to the compensation computed as against the tortfeasor for his negligence on account of the accident. As aforesaid, the amount receivable as compensation under the Act is on account of the injury or death without making any contribution towards it, then how can the fruits of an amount received through contributions of the insured be deducted out of the amount receivable under the Motor Vehicles Act. The amount under this Act he receives without any contribution. As we have said, the compensation payable under the Motor Vehicles Act is statutory while the amount receivable under the life insurance policy is contractual."

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."

(6 of 7) [CMA-117/2012]

Thus, the Tribunal fell in error while deducting the pension of

the deceased from his total income while computing the award in

the present case.

The Tribunal also committed an error while not taking into

consideration the amount towards the loss of future prospects in

view of the judgment of Hon'ble the Supreme Court in the case of

Pranay Sethi (supra). Thus, the same is also required to taken into

consideration while computing the award.

As far as the argument of the learned counsel for the

appellants-claimants with regard to the amount to be spent on the

deceased should be 1/4th of the monthly income is concerned, the

same is not correct as the Tribunal rightly considered the evidence

on record and came to the conclusion that only three persons

were dependent on deceased Kishna Ram and the fourth person

i.e. son of the deceased is a major person involved in agricultural

activities, therefore, it cannot be said that he was dependent on

his deceased father. Therefore, the deduction was rightly done by

the Tribunal to the extent of 1/3rd.

In view of the discussions made above, the re-computation

of the award in the present case is as under:-

For            future 30% of Rs.10,668/- Rs. 3,200/- (Rounded Off)
prospects :-          (Income          of
                      deceased)
Rs. 10,668/-+ Rs. 3,200/-                               Rs. 13,868/-

Amount to be deducted as Rs. 13,868/- / 1/3= spent on himself. Rs. 4623/- (Rounded Off) Dependence Amount Rs.13,868- Rs. 4623= Rs. 9,245/-

(7 of 7) [CMA-117/2012]

The age of deceased was 45 years, therefore, a multiplier of 13

will be applied.

(I) Compensation due to 9,245 x12 x 13 Rs. 14,42,220/-

death

(II) Other Conventional Heads Rs. 77,000/-

                                                                                Total                Rs. 15,19,220/-

                                           Amount already awarded by the Tribunal                    Rs. 2,41,684/-

                                                                       Enhanced amount Rs. 12,77,536/-

Thus, the appeal preferred by the appellants-claimants is

partly allowed. The respondent-Insurance Company is directed to

pay the enhanced amount of Rs.12,77,536/- (Rs. Twelve Lac

Seventy Seven Thousand Five Hundred Thirty Six Only) in favour

of the appellants-claimants in addition to the amount of

compensation already awarded by the Tribunal vide its judgment

dated 27.09.2011 within a period of six weeks from today. The

enhanced amount shall carry interest @ 6% p.a. from the date of

filing of the claim petition, till the same is paid.

(VINIT KUMAR MATHUR),J

107-/Vivek/-

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