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Judgment
This appeal is filed under Section 173(1) of the Motor
Vehicles Act, 1988, seeking enhancement of compensation
awarded by the Principal Senior Civil Judge and Motor
Accident Claims Tribunal, Belgaum (hereinafter referred to
as ''the Tribunal'' for short), by its judgment and award
dated 10.10.2011 in M.V.C. No.1001/2010.
The appellants/claimants, in their memorandum of
appeal has taken contention that the Tribunal below
wrongly considered the age of the deceased and applied a
smaller multiplier. It further erred in deducting the family
pension out of the loss of dependency, which is contrary to
the law. The compensation awarded towards loss of
consortium and loss of love and affection is also very less.
With this, they have prayed for modification of the
judgment and award under appeal by enhancing the
compensation awarded therein.
On notice being issued, respondent No.2 is
represented by its standing counsel. Notice to respondent
No.1 is dispensed with at the request of the appellants.
The records of the Tribunal below were called for and the
same are placed before us.
Heard the arguments from both sides and perused
the memorandum of appeal, impugned judgment and the
entire materials placed before this court.
In the light of the above, the point that arises for
our consideration is;
"Whether the claimants have made out
grounds for enhancement of
compensation?"
The summary of the case of the appellants as
could be gathered from the materials placed before us is
that on 5.11.2009 at about 1.00 p.m., the deceased
Tukaram Gundu Mohite, while proceeding on his motor
cycle bearing registration No.KA-22/Y-8067 from Belgaum
to Shindolli, near Shindolli cross on Sambra road, a car
bearing registration No. KA-22/MD-7555 being driven by
its driver in a rash and negligent manner came from
behind and dashed to his motor cycle, due to which
accident, the deceased sustained grievous injuries to head
and other parts of the body. He was immediately shifted to
KLE Hospital, Belgaum for treatment, where he succumbed
to the injuries during the course of treatment. The
claimants have further stated that the deceased was aged
59 years and was serving as head constable in APMC
Police Station, Belgaum, and was drawing a salary of
Rs..20,000/- per month. The claimants were dependent upon
him. Holding that the respondent Nos.1 and 2 as the
owner and insurer of the motor cycle respectively in the
Tribunal below, the claimants have claimed compensation
of Rs.40,00,000/- from them.
The Tribunal below after recording the evidence
and perusing the materials placed before it and also after
hearing the parties, by its judgment and award dated
10.10.2011 awarded a compensation of a sum of
Rs.5,01,406/- together with interest at the rate of 6% p.a.
from the date of petition till the date of realisation and
held that both the respondents are jointly and severally
liable to pay the said compensation. It is the said
judgment and award the claimants have challenged in this
appeal, seeking enhancement of compensation.
The compensation awarded by the Tribunal below
under different head is as below :
1 Loss of dependency Rs.4 ,59,406-00
2 Loss of consortium Rs.10,000-00
3 Loss of estate Rs. 10,000-00
4 Funeral expenses Rs.7,000-00
5 Loss of love and Affection Rs.15,000-00
Total Rs.5,01,406/
For the sake of convenience, the parties would be
referred to with the ranks they were holding in the
Tribunal below.
The learned counsel for the appellants in his
argument reiterated the contention taken up by him in the
memorandum of appeal.
On the other hand, the learned counsel for the
respondents in his argument submitted that the
compensation awarded by the Tribunal below is reasonable
and adequate and as such, the findings of the Tribunal
does not warrant interference at the hands of this court.
The present appeal being the claimants appeal and
the respondents having not preferred either cross-
objection or a counter appeal, the question of occurrence
of accident, the date, time and place as alleged by the
claimants and also the alleged fault on the part of the
driver of the offending vehicle are not in dispute.
Therefore, the question of occurrence of accident and the
alleged liability of the respondents to pay compensation to
the claimants need not be re-analysed again. The only
question that remains to be considered is about the
quantum of compensation awarded by the Tribunal below.
The main contention in the arguments of the
learned counsel for the appellants is that the Tribunal
below ought not to have deducted the pensionary benefit
while calculating the loss of dependency. Further, the
multiplier adopted by it as ''7'' is also incorrect and the
multiplier ought to have been ''9'' for the age of the
deceased. The learned counsel for the appellants
submitted that the observation of the Tribunal below that
the deceased was aged 59 years as on the date of the
accident and that he had left with 11 months of service for
reaching superannuation is not disputed by the appellants
and as such, the age of the deceased can be taken as 59
years.
The Tribunal below has applied the multiplier of ''7'' to
the said age which ought to have been ''9''. Considering
the salary certificate of the deceased at Ex.P.8 and the
evidence of P.W.1, the Tribunal below has arrived at a
finding that the salary drawn by the deceased for the
month of September 2009 and October 2009 was at
Rs..18,941/- per month. After deducting professional tax of
Rs..200/-, it has calculated the net salary of the deceased at
Rs..18,741/-. After deducting 1/3 towards his personal
expenses, the remaining amount of Rs..12,494/- per month
was taken as contribution to the family of the deceased.
For 11 months till the date of superannuation the deceased
was expected to contribute every month the said sum
towards his family. As such, the contribution towards the
family of the deceased for 11 months would be Rs..12,494 x
11 = Rs.. 1,37,434.
To calculate the loss of dependency for the
remaining period, the Tribunal below has calculated the
monthly pension expected to have been received by the
deceased had he been alive, at Rs..9,500/- per month. Out
of the said amount, 1/3 of the same was deducted towards
his personal expenses by the Tribunal below. As such, the
notional loss of dependency was considered to be
Rs..6,333/- per month. The learned counsel for the
appellants further submitted that he does not dispute the
said calculation. However, the Tribunal below has observed
that even after the death of the deceased who was a
public servant, the family would continue to get family
pension not less than a sum of Rs..2,500/- per month, and
proceeded further to deduct the family pension also in
calculating the notional loss of dependency towards the
family. It is the said point the learned counsel for the
appellants in his argument vehemently opposed and stated
that pension being a pecuniary advantage receivable by
the heirs on account of ones death, such amount will not
come within the periphery of the Motor Vehicles Act to be
termed as ''a pecuniary advantage liable for deduction''. In
his support, the learned counsel for the appellants has
relied upon a decision of our Hon''ble Supreme Court in the
case of Vimal Kanwar and Ors v. Kishore Dan and Ors,
2012(2) G.L.H.42 . In the said case, the Apex Court after
referring to the judgment in Helen C.Rebello (Mrs) and
others v. Maharashtra State Road Transport Corporation &
Anr. Reported in (1999) 1 SCC 90 was pleased to observe
that the family pension 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. With this
observation, it was held that the family pension receivable
by the family after the death is not deductible by terming
as ''pecuniary advantage liable for deduction'' in a
compensation of motor vehicle accident claims.
However, the learned counsel for the
respondent-insurance company in his argument relying
upon another judgment of our Hon''ble Supreme Court in
the case of Reliance General Insurance Company v.
Shashi Sharma and Others, reported in 2016(9) SCC
627, submitted that the family pension is deductible in
the compensation of motor vehicle claims. In the said
case, respondents/claimants were dependents of an
employee of Government of Haryana who died in a motor
accident and the claimants had separately claimed loss of
pay and wages apart from receiving exgratia amount from
State Government. The appellant insurance company
challenged it on ground that such computation would
end up conferring a profit to claimants. However, the High
Court rejected this contention. In an appeal, the Hon''ble
Apex Court observed that generally claimants are legally
entitled to claim under " loss of pay and wages " of the
deceased Government employee against tortfeasor or
insurance company. However, the dependents of the
deceased employee of Government of Haryana are not
entitled to claim such claim as they received "pay and
allowance" under Rule 5(1) of Haryana Compassionate
Assistance to the Dependants of the Deceased
Government Employees Rules, 2006. Thus, the result of
harmonious interpretation of another applicable law like
Haryana Rules, 2006 and M.V. Act is that compensation
payable under Motor Vehicle Act must exclude the amount
received under Haryana Rules, 2006 under head " loss of
pay and allowances". With great respect, it is submitted
that in the instant case there is no similar provision like
Haryana Compassionate Assistance to the Dependants of
the Deceased Government Employees Rules, 2006, under
which the dependants would have received "Pay and
allowance". It is only the family pension, which the
deceased employee may get and as such, the said family
pension cannot be treated as " pay and allowance".
Therefore, the said decision relied upon by the learned
counsel for the insurance company is not helpful to him.
Further more, in the said decision, it is the
Hon''ble Apex Court at para -15 has observed that the
principle regarding deductible amount has been
correctly expounded in Helen C. Rebello, (1999) 1 SCC 90 .
That the "pecuniary advantage" from whatever source
must correlate to the injury or death caused on account of
motor accident. The view so taken is the correct analysis
and interpretation of the relevant provisions of the Motor
Vehicles Act of 1939, and must apply proprio vigore to the
corresponding provisions of the Motor Vehicles Act, 1988.
From this, it is clear that as observed by the
Apex Court in the case reported in 2013(2) G.L.H.42
(supra) , the pension is an earning of an employee for the
benefit of his family in the form of his contribution in terms
of service conditions receivable by the heirs after his
death. Therefore, the same cannot be correlated to the
pecuniary advantage, which has no correlation to the
injury or death caused on account of the motor accident.
As such, the Tribunal below ought not to have deducted
family pension at Rs..2,500/- per month from the notional
loss of dependency at Rs..6,333/- per month. Thus, the
notional contribution of the deceased being his contribution
to the family remains at Rs..6,333/- per month. When it is
multiplied by multiplier ''9'', ( Rs..6333 x 12 x 9), it comes to
Rs..6,83,964/-. To this amount, 11 months contribution of
Rs..1,37,434 as calculated above when added, it comes to a
sum of Rs..8,21,398/-. This amount the claimants are
entitled as compensation towards ''loss of dependency''.
The Tribunal has awarded compensation of
Rs..10,000/- towards loss of consortium, Rs..7,000/-towards
funeral expenses and Rs..15,000/- towards loss of love and
affection. In the facts and circumstances of the case, we
are of the opinion that towards loss of consortium, the
claimants are entitled for compensation of Rs..50,000/-.
Towards funeral expenses and transportation of body
Rs..20,000/- is awarded. Towards love and affection, a sum
of Rs..30,000/-, towards loss of estate a sum of Rs..10,000/-
as awarded by the Tribunal below has been retained as it
is. Thus, in total the claimants are entitled for a sum of
Rs..9,31,398/- rounded of to Rs..9,31,400/-. The brake up
figures are as under:
1 Towards loss of dependency Rs.. 8,21,398/-
2 Towards loss of consortium Rs.. 50,000/-
3 Towards funeral expenses and Transportation of dead body Rs.. 20,000/-
4 Towards loss of love and affection Rs.. 30,000/-
5 Towards loss of estate Rs.. 10,000/-
Total rounded of to
Rs.. 9,31,398/- Rs.. 9,31,400/-
Since the judgment and award passed by the
Tribunal being lower than what the reasonable
compensation was, the appeal deserves to be partly
allowed and the judgment and award under appeal
requires to be modified.
Accordingly, we answer the above point partly
in the affirmative and proceed to pass the following:
ORDER
The appeal is allowed in part.
The judgment and award passed by the Principal
Senior Civil Judge and Motor Accident Claims Tribunal,
Belgaum, in M.V.C. No.1001/2010 dated 10.10.2011 is
modified to the extent that the compensation awarded at
Rs.. 5,01,406/- is enhanced and fixed at Rs.. 9,31,400/-
(Rupees nine lakhs thirty one thousand four hundred only).
The rest of the order of the Tribunal with respect to
fixing the liability upon the respondent/s and directing the
respondent/s to deposit the awarded amount, awarding
interest, its rate, terms regarding release of the amount
awarded shall remain unaltered.