Smt. Jahirabi and Others vs V.S. Siddalingappa and Others

Hari Nath Tilhari, J.—This appeal is directed against the judgment and award dated 28.1.1994 delivered by the Motor Accidents Claims Tribunal (Principal District Judge), Shimoga, whereby the Tribunal has awarded in total a sum of Rs. 60,800.00 with interest at 6% p.a. from the date of petition till realisation of entire amount with costs.

The facts of the case in nut-shell are that, as per the finding recorded on issue No. 1 that, on 23.5.1988 at about 7.30 p.m. deceased Kalligudi, Head Constable, with Siddalingappa, Police Sub-Inspector, was moving on a motor cycle from Karnagiri towards Hosanagar and the deceased was the pillion rider and the motor cycle in question bearing registration No. CAG 7512 was being driven by Siddalingappa, Respondent No. 1. According to the claimants'' case, on account of rash and negligent driving of the Respondent No. 1-Siddalingappa, the motor cycle dashed against the side stone, viz., guard-stone of the road near Kallahallada bridge, Kalligudi sustained serious injuries and died while he was being taken to the hospital. The Tribunal found that the cause of accident was proved to be rash and negligent driving of the motor cycle by the 1st Respondent. After having recorded this finding, dealing with the question of assessment of compensation to be awarded, the Tribunal found that the age of the deceased at the time of accident was 52 years. The Tribunal further opined that the deceased, no doubt, was getting a monthly salary of Rs. 1,856.00 per month. The Tribunal further observed that the claimant/Appellant No. 1 was awarded the family pension of Rs. 600.00 per month and after the death of her husband in the accident, the 1st claimant i.e., the 1st Appellant had been paid a sum of Rs. 40,000.00 towards gratuity and other benefits. Taking all these into consideration, the Tribunal opined that from the sum of Rs. 1,856.00, the amount of family pension which the claimant was awarded has to be deducted and on that basis, the Tribunal found that the amount of salary now come to Rs. 1,256.00. The Tribunal further opined that from this amount of salary, a sum of Rs. 400.00 has to be deducted towards the personal expenses of the deceased which he would have spent on himself and thereafter it recorded a finding that the loss of dependency comes to Rs. 850.00 per month i.e., monthly loss of dependency and found that yearly loss of dependency works out to Rs. 10,200.00. It applied the multiplier of 9 and arrived at the conclusion that the loss of dependency can be said to be Rs. 91,800.00. The Tribunal further opined that the claimant is entitled to a sum of Rs. 5,000.00 towards funeral expenses and obsequies and awarded a further sum of Rs. 4,000.00 towards loss of consortium. Adding these amounts together it opined that it works out to Rs. 1,00,800.00. The Tribunal opined that as the claimant No. 1-PW-1 has admitted that subsequent to the death of her husband she was paid a sum of Rs. 40,000.00 towards gratuity and other benefits, this amount of Rs. 40,000.00 has to be deducted from the said amount of Rs. 1,00,800.00 and after making that deduction, the Tribunal held that the claimant/Petitioner i.e., the Appellant would be held to be entitled to a sum of Rs. 60,800.00 in total as compensation. The Tribunal held that the Respondents 2 and 3 as well as 4 are jointly liable to pay the said amount. It further held that there is a coverage of deceased who is a third party and the Petitioners have proved that K.G.I.D. had also covered the risk of pillion rider and as such, the K.G.I.D. is also liable.

Feeling dissatisfied with the quantum of compensation awarded, the claimants/Petitioners have come up before this Court by filing the appeal u/s 110(D) of the Motor Vehicles Act, 1939, which is analogous to Section 173 of the Motor Vehicles Act, 1988.

We have heard Sri H.S. Sureshappa Gowda, learned Counsel for the Appellants and the learned Government Pleader Sri Bharamagouda for the Respondents.

The learned Counsel for the Appellants contended that the Tribunal committed firstly an error of law while assessing the loss of dependency by deducting the amount of family pension and gratuity paid to the claimant No. 1 after the demise of her husband Hussain Sab Kalligudi. The learned Counsel submitted that these amounts could not be deducted from the salary or from the total amount of compensation. The learned Counsel further contended that the multiplier of 9 which had been applied is not correct. The learned Counsel contended that looking to the age of the deceased running in between 50 to 55 years i.e., being 52 years as found by the Tribunal, the proper multiplier would have been not 9, but 11. The learned Counsel further contended that towards consortium, award of Rs. 4,000.00 is on the lesser side. The learned Counsel for the Appellant attempted to contend that deduction of 1/3rd or Rs. 400.00 towards personal expenses of the deceased is too excessive. It should have been only 1/4th and not 1/3rd . I mention that an attempt had been made, but not with full vigour this contention had been put. No other contentions have been raised by the learned Counsel for the Appellants. So we are required only to consider the contentions raised by the learned Counsel for the Appellants.

The learned Government Counsel hotly contested the contentions made by the learned Counsel for the Appellants, but very fairly admitted that so far as legal position is concerned, it has been held by the Supreme Court as well as by the Full Bench of this Court that amount of family pension granted to the widow after the demise of her husband in the accident or payment of gratuity amount could not be deducted from either salary or from the total compensation. This fairness of the learned Government Pleader is appreciated by us. The legal position is like that the family pension amount granted after the death has no legal nexus with the accident or death caused because of accident. So far as payment of family pension or gratuity amount or insurance money is concerned, these amounts are payable to the claimants if her husband would have died otherwise than in accident, and then also she would be entitled to get family pension and payment of gratuity. Therefore, here the deductions which have to and can be made rather to be made only with reference to benefits arising to the claimants having nexus with the accident resulting in death and these amounts should not be deducted from the salary while assessing the loss of dependency nor amounts received by the heirs of the deceased by way of gratuity or by way of insurance policies. When we so opine, we find support for our view from the decision of Their Lordships of the Supreme Court in the case of Mrs. Helen C. Rebello and Others Vs. Maharashtra State Road Transport Corpn. and Another, . Their Lordships of the Supreme Court observed, in paragraph 33, as under:

So far as the general principle of estimating damages under the common law is concerned, it is settled that the pecuniary loss can be ascertained only by balancing on one hand, the loss to the claimant of the future pecuniary benefits that would have accrued to him but for the death with the ''pecuniary advantage'' which from whatever source comes to him by reason of the death. In other words, it is the balancing of loss and gain of the claimant occasioned by the death. But this has to change its colour to be extent a statute intends to do. Thus, this has to be interpreted in the light of the provisions of the Motor Vehicles Act, 1939. It is very clear, to which there could be no doubt that this Act delivers compensation to the claimant only on account of accidental injury or death, not on account of any other death. Thus, the pecuniary advantage accruing under this Act has to be deciphered, co-relating with the accidental death. The compensation payable under the Motor Vehicles Act is on account of the pecuniary loss to the claimant by accidental injury or death and not other forms of death. If there is natural death or death by suicide, serious illness, including even death by accident, through train, air flight not involving motor vehicle, would not be covered under the Motor Vehicles Act. Thus, the application of general principle under the common law of loss and gain for the computation of compensation under this Act must co-relate to this type of injury or deaths, viz., accidental. If the words ''pecuniary advantage'' from whatever source are to be interpreted to mean any form of death under this Act, it would dilute all possible benefits conferred on the claimant and would be contrary to the spirit of the law. If the ''pecuniary advantage'' resulting from death means pecuniary advantage coming under all forms of death then it will include all the assets movable, immovable, shares, bank accounts, cash and every amount receivable under any contract. In other words, all heritable assets including what is willed by the deceased etc. This would obliterate both, all possible conferment of economic security to the claimant by the deceased and the intentions of the legislature. By such an interpretation the tortfeasor in spite of his wrongful act or negligence, which contributes to the death, would have in many cases no liability or meagre liability. In our considered opinion, the general principle of loss and gain takes colour of this statute, viz., the gain has to be interpreted which is as a result of the accidental death and the loss on account of the accidental death. Thus, under the present Act whatever pecuniary advantage is received by the claimant, from whatever source, would only mean which comes to the claimant on account of the accidental death and not other form of death. The constitution of the Motor Accidents Claims Tribunal itself u/s 110, is as the Section states:

''...for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to...''

Their Lordships observed in very clear terms that under the present Act whatever pecuniary advantage is received by the claimant, from whatever source, would only mean which comes to the claimant on account of the accidental death and not other form of death. Their Lordships thereafter examined the receipt of the provident fund, family pension and life insurance and observed that such amounts are not receivable by the claimant on account of accidental death, but death otherwise. The Full Bench of this Court has also opined while dealing with the case of family pension that it is not liable to be deducted from the salary in the matter of assessing the loss of dependency.

In this view of the matter, in our opinion, the Hon''ble Member of the Tribunal erred while assessing loss of dependency by deducting Rs. 600.00 per month from the salary of the deceased which he was getting at the time immediately before his death on the ground that claimant-Appellant No. 1 has been awarded a Family Pension to the tune of Rs. 600/- p.m. We are further of the view that the Tribunal committed error of law by deducting from the amount of compensation assessed a sum of Rs. 40,000.00 awarded to and received as gratuity and other benefits, by the claimants. Thus, the very basis for assessment of loss of dependency or compensation appears to suffer from error of law, as indicated above. Therefore, for the purpose of assessing the loss of dependency, we have to take and we do take Rs. 1,856.00 as the monthly salary of the deceased at the time of his death. No doubt, the learned Counsel for the Appellants contended that towards personal expenses, deduction be made only to the extent of 25%. The learned Counsel for the Appellants could not place any direct authority on this proposition. In our opinion, the deduction of 1/3rd out of the salary would be proper with reference to personal expenses of the deceased on himself. Having deducted 1/3rd of the salary, the monthly amount towards loss of dependency, in our opinion, will come to Rs. 1,237.00 per month and yearly loss of dependency comes to Rs. 14,844.00. This yearly loss of dependency is to be multiplied by 11, the loss of dependency comes to Rs. 1,63,284.00 and the claimant is entitled to be awarded this sum towards compensation for loss of dependency. In our opinion, the amount of Rs. 4,000.00 which Tribunal has awarded towards loss of consortium, love and affection is on the lower side. In our opinion, the proper amount to be awarded under this head would be Rs. 10,000.00 and as such for loss of consortium and love and affection, the claimants/Appellants are hereby awarded a sum of Rs. 10,000.00 as compensation. The Tribunal has awarded a sum of Rs. 5,000.00 towards expenses of funeral and obsequies. That appears to be justified. Taking these amounts together, in our opinion, the figure works out to be Rs. 1,78,284.00, by rounding of this figure, the total amount will come to Rs. 1,80,000.00. We award Rs. 1,80,000.00 as total compensation and modify the award from Rs. 60,800.00 and enhance it to total figure of Rs. 1,80,000.00. The claimant is awarded the sum of Rs. 1,80,000.00 towards total amount of compensation.

The other finding of the trial Court regarding liability has not been challenged. The learned Counsel for the Appellant contended that the award of interest at the rate of 6% p.a. has been on the lower side and it should be enhanced to 12% or 9%. As pointed out by my brother Justice Vallinayagam that this plea has not been raised at all in the grounds of appeal and it has also been contended by the learned Government Pleader that this plea has not been raised in the grounds of appeal, so it should be taken that the claimant has been satisfied with the award of 6% p.a. interest. No doubt, this Court has opined in very many cases as well as the Supreme Court in the case of Dr K.R. Tandon (Mrs) Vs. Om Prakash and Another, has opined that in view of developing inflation and erosion of value of rupee, award of interest at a lesser rate than 12% is justified. But as the Appellant has not raised this ground in the grounds of appeal, his contention as to rate of interest is not being considered. So far as award of 6% interest is concerned, it is maintained and on entire amount of compensation enhanced, interest @ 6% p.a. shall be paid by Respondents from the date of claim till the payment thereof. The entire amount of compensation has to be deposited within the period of eight weeks along with entire upto date interest thereon @ 6% p.a. minus the amount if any has already been paid or deposited by the Respondents. If the above amount is not paid/deposited within this aforementioned period of eight weeks from the date of receipt of copy of judgment, provided an application for copy thereof is made within a week from today, the Respondents will be liable to pay the higher interest at the rate of 12% p.a. from aforesaid date of claim petition thereon.

The appeal is thus allowed.