AI Structured Summary
Not yet generated for this judgment
Judgment
Admit. By consent of the parties, the Appeal is heard finally
and decided at the stage of admission, as short issue is involved.
This Appeal is directed against the judgment and award dated
17.09.2012 passed by the learned Member, Motor Accident Claims
Tribunal, Mumbai in M.A.C.P. No. 3229 of 2008 thereby allowing the
claim application filed under Section 166 of the Motor Vehicles Act,
1988 (hereinafter referred to as "the said Act"). The original claimant
is a widow of the deceased Hiraman Babar, who died in a vehicular
accident on 24.09.2008. On 24.09.2008, at 9.45 a.m. when he was
crossing the road, one auto rickshaw bearing no. MH-03-M-429
gave dashed to Hiraman. Due to accident, he has sustained severe
injuries and died soon. At the time of accident, he was 53 years old.
He was working in the Office of Tahasildar, Mulund, Mumbai as a
Peon and was drawing salary of Rs. 11,500/- p.m. Therefore, the
original claimant has claimed compensation of Rs. 10 lakhs. After
notice, opposite party/ owner did not appear and, therefore, the
matter was proceeded ex-parte against him. The appellant/
insurance company appeared, filed written statement and contested
the averments made in the claim application. The issues were
framed by the Tribunal. The original claimant stepped in the witness
box. So also, one Sudhir Madhavrao Chaudhari, who is working in
the office of Tahasildar as a Senior Clerk, was examined on the point
of service and salary. The original claimant relied on the police
papers. The appellant/ insurance company examined one Sachin
Kashiram Hiwale, who is working as a Clerk in the Office of Regional
Transport Office, and produced a copy of smart card driving licence
of the driver of the offending auto rickshaw. The learned Member of
the Tribunal, after considering the oral as well as documentary
evidence, held opposite party and insurer jointly and severally liable
to pay compensation of Rs. 9,82,925/- along with interest @ 7.5%
p.a. from the date of filing of the petition till realization of the said
amount. Being aggrieved by the said judgment and award, the
insurance company has filed this Appeal.
The learned Counsel for the appellant/ insurance company has
submitted that the insurance company has challenged the judgment
and award on two grounds that the learned Member of the tribunal
should not have been adopted multiplier 9 to calculate the loss of
dependency. He has further submitted that the deceased was a
government employee and he was getting fixed salary. He has
further submitted that the deceased was due for retirement after two
years and, therefore, the Tribunal should not have been adopted
multiplier 9 for two years. He has further submitted that the
deceased would have got full salary only for more two years and
after his retirement he was supposed to get pension amount. Hence,
the amount of compensation should have been reduced on that
basis. He has raised another objection that the original claimant was
receiving pension after the death of her husband and, therefore, her
loss of dependency was compensated to that extent. He has further
submitted that the learned Member of the Tribunal ought to have
deducted the amount of pension from the amount of compensation.
He has further submitted that the amount of compensation granted
by the Tribunal is on the higher side and, therefore, the impugned
judgment and award passed by the learned Member of the tribunal
needs to be partially set aside. In support of his submission, he has
relied on the judgment of this Court dated 22.04.2010 in First
Appeal No. 1003 of 2005 in the case of Smt. Sushma Sudhakar
Kadam & Ors. Vs. Waman S/o. Shrawan Zanke & Ors.
Per contra, the learned Counsel for respondent no.1/ original
claimant opposed this Appeal. She supported the impugned
judgment and award passed by the Tribunal. She has submitted
that the learned Member of the Tribunal has calculated the amount
properly by considering all aspects of the age, income and
dependency. She has further submitted that the amount of pension
cannot be deducted from the amount of compensation. In support of
her submission, she has relied on the judgment of the Supreme
Court in the case of Vimal Kanwar and others V. Kishore Dan and
others reported in 2013 ACJ 1441.
Heard submissions. Perused the impugned judgment and
award. The fact of death of Hiraman Babar in road accident on
24.09.2008 is not disputed. He was pedestrian and the offending
auto rickshaw dashed him when he was crossing the road. Mainly
two grounds of challenge are for consideration. Firstly, whether the
learned Member of the tribunal should have applied the principle of
split multiplicand and secondly, whether the amount of pension
should have been deducted from the amount of compensation.
The first point involves the age of the deceased, who was
56 years old at the time of the accident. As per the schedule given
in the case of Smt. Sarla Varma and Others V/s. Delhi Transport
Corporation and Another reported in (2009) 6 Supreme Court
Cases 121, if the deceased is between the age group of 56-60, then
multiplier 9 is adopted. In the present case also, the learned Member
of the Tribunal has fixed a correct multiplier 9. The objection of the
learned counsel for the appellant/ insurance company in fact is not
about the multiplier, but it pertains to multiplicand in view of the age
of the deceased and the nature of his service. The deceased was
working as a Peon in the Office of Tahasildar hence government
employee. At the time of accident, he was drawing salary of
Rs. 11,500/- p.m. and the tenure of his service was fixed upto 58
years as per the government service Rules. The insurance
company has no grievance in giving the compensation by adopting
multiplicand in accordance with his monthly salary i.e., Rs.11,500/-
p.m. only for two years till his age of 58, however, the objection is
raised in respect of further seven years. After two years i.e., after
superannuation the deceased would not have earned the same
salary, but his earning was bound to reduce. The deceased was
supposed to get pension, which is bound to be lesser than his salary.
Hence, it was argued that for a period of seven years the multiplicand
is to be fixed not on the basis of his salary, but on the basis of his
pension.
These arguments may appear correct, but after close scrutiny
of the facts and on applying the principles of law under the Motor
Vehicles Act and calculating the amount of compensation, the
arguments are found fallacious and hence, not acceptable. While
calculating the pecuniary damages, it cannot be restricted to the
salary and pension of the deceased. The date of superannuation of
the government employee is always fixed. However, two factors
cannot be ignored. Firstly, there is always rise in the salary
consequently pension also increases after every ten years i.e., on
implementation, directions and recommendation of the pay
commission. After retirement, a person may survive minimum 10 to
15 years i.e., upto 65 to 75 years. Secondly, after superannuation at
the age of 58, considering the longevity of the life of the
individuals due to advanced medical science, the person may get
benefit of such pension for more years. Therefore, it is not desirable
to restrict the multiplicand for a period of two years upto the amount
of salary of the deceased and thereafter, by splitting it cannot be
fixed at a lesser amount i.e., pension amount. The principle of split
multiplier can be applied in appropriate case, but I am of the view
that it is not a fit case to take recourse of split multiplier.
The second point was whether the amount of pension
receivable by the original claimant i.e., widow of the deceased is
subjected to deduction while calculating the amount of
compensation. The government employee is entitled to get pension
for the services rendered by him/her during his/her service. The
pension is a financial security to the employee if job is pensionable.
After the death of the employee, the spouse is also entitled to receive
family pension as per the rules. The pension is the statutory financial
benefit for which the spouse is entitled to. The cause of death of the
employee may be sickness or any other disease or natural or
unnatural death. The accident may be one of the causes. After the
death of the employee due to any reason, the pension is receivable
by the spouse. However, the compensation is payable to only for a
particular class of death where the cause is an accident. The
amount of compensation is related to the accidental death, but the
amount of pension is related to only death. The payment of
compensation is based on contractual liability between the insured
and insurer and the payment of pension is a statutory obligation of
the Government/State or employer under the Act/ Rules. Thus, these
two liabilities/ obligations are different, cannot be merged, as the
amount of compensation is not a substitute in any manner for the
amount of pension. This contractual liability of the insurance
company is recognized under the statute hence the insurance
company has to pay compensation. In the case of Smt. Sushma
Sudhakar Kadam (supra), this was not the issue before the Single
Judge of this Court. There is a passing reference where pension is
deducted from the amount of compensation. I rely on the ratio laid
down in the case of Vimal Kanwar and others (supra) wherein the
Supreme Court has considered the issue whether the salary
receivable by claimant on compassionate appointment comes within
the periphery of the Motor Vehicles Act to be termed as "Pecuniary
Advantage" liable for deduction. The Supreme Court has held as
under:-
"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 ".
Thus, income gained out of pension is not a pecuniary advantage
purported in the Motor Vehicles Act and hence, not liable for
deduction. If a person dies due to the dash given by the vehicle
validly insured with the insurance company, and the claimant proves
the cause of death and income, then the insurance company is
liable to pay compensation as per standardized formula laid down in
the case of Sarla Varma (supra) and also in the case of National
Insurance Company Limited Versus Pranay Sheti and Ors.
reported in AIR 2017 SC 5157. Therefore, I am of the view that the
learned Member of the Tribunal has taken correct approach in not
deducting the amount of pension receivable by the original claimant
from the amount of compensation. Hence, First Appeal is
dismissed.
In view of dismissal of the First Appeal, Civil Application does
not survive and the same is accordingly disposed of.