Smt. Savithri @ Savithramma @ Vijayalakshmi and Others vs Ramappa and Another

Tirath S Thakur, J.—Additional Motor Accident Claims Tribunal, Hubli has allowed MVC No. 118 of 1996 in part and awarded a sum of Rs. 2,52,633/- with interest at the rate of 9% per annum towards compensation for the death of late Sri Parvatgouda Patil in a motor accident. The claimants-appellants have appealed to this Court for a suitable enhancement of the said amount.

The deceased Parvatgounda Patil was working as police constable attached to the office of the Commissioner of Police Hubli at Dharwad. He was, on the fateful day, returning to his village from Hubli on a two wheeler when a truck coming from the opposite direction knocked him down resulting in his death two days later in the hospital to which he was removed for treatment. In due course, the appellants filed MVC NO. 118/1996 for payment of compensation and prayed for an amount of Rs. 12,00,000/- with interest at 18% per annum.

The claim was opposed by the Respondent-giving rise to three issues, which the Tribunal framed and has answered in favour of the claimants, by the impugned judgment. The Tribunal has held that the accident in question had occurred on account of rash and negligent driving of the offending truck by its driver. It has further held that the claimants are entitled to payment of compensation. While determining the amount of compensation, the Tribunal has taken the salary of the deceased at Rs. 3112/- per month and after deducting 1/3rd of the said amount towards his personal expenses, treated the balance amount of Rs. 2075/- as the contribution of the deceased to his family. It has then deducted from the said amount a sum of Rs. 590/- per month on account of the family pension which his family was receiving to bring the net loss of dependency to Rs. 1,485/- per month or Rs. 17,820/- per annum. The said amount has then been capitalized by applying a multiple of 15 to take the total loss of dependency to Rs. 2,67,300/- To that amount, the Tribunal has added a sum of Rs. 10,000/-towards loss of consortium, Rs. 2000/- towards funeral expenses and sum of Rs. 5,000/- towards mental pain and agony to the claimants appellants during the time the deceased was in hospital. The Tribunal has then deducted from the amount so determined a sum of Rs. 21,667/- on account of the payment received by the claimant from the Life Insurance Corporation. The award amount, has in the process, been reduced to Rs. 2,62,633/- payable with interest at the rate of 9% pa from the date of the claim petition till the date of deposit.

We have heard Mr. M.V. Hiremath learned Counsel appearing for the claimants-appellants and Sri M. Sowri Raju, learned Counsel for the respondent-insurance company. Since the insurance company has not preferred any appeal against the award made by the Tribunal. We are not called upon to examine the correctness of the finding regarding the genesis of the accident. We proceed on the premise that the accident in question had taken place as a result of rash and negligent driving of the truck by its driver.

The forensic debate at the bar was limited to the amount of compensation payable to the claimants. Mr. Hiremath made a twofold submission in that regard. Firstly, he submitted that the Tribunal had committed an error in deducting a sum of Rs. 590/- towards family pension being received by the claimants subsequent upon the death of the deceased. Such a deduction was not according to him permissible in the light of a Full Bench decision of this Court in Smt. Parvati @ Baby and Others Vs. Hollur Hallappa and Others, especially when for computing the multiplicand the pension factor was not taken into consideration by the Tribunal. Secondly he argued that the deduction of Rs. 21,667/- made by the Tribunal on account of the payment received by the claimants from the Life Insurance Company was unjustified and legally impermissible in the light of the settled legal position that such payment could not be taken into consideration while computing the loss of dependency. Reliance was placed by the learned Counsel upon the decision of the Supreme Court in Mrs. HELEN C REBELLO AND OTHERS vs MAHARASHTRA STATE ROAD TRANSPORT CORPORATION AND ANOTHER 1998 (7) SC 404 . There is a considerable merit in both the submissions made by Mr. Hiremath. The decision of the Full Bench of this Court in Smt Parvathy''s case Supra authoritatively declares that if the loss of dependency is calculated only on the basis of the monthly emoluments received without adding the pension factor to such emoluments, it is unnecessary to make any deduction on account of receipt of family pension. The job held by the deceased was no doubt pensionable but the Tribunal had while calculating the loss of dependency excluded the pension factor and taken the monthly emoluments alone as the basis for determining the multiplicand. In that view therefore, it is not permissible to deduct any part of the amount received on account of the Family Pension which the family members of the deceased were receiving. The multiplicand therefore, ought to have been taken on Rs. 2,075/- per month or Rs. 24,900/- per annum. Since the deceased was around 34 years old, the multiple applicable to the case was 15 in the light of the decision of this Court in V.S. Gowdar Vs. The Oriental Insurance Company Limited and Another, . and the Full Bench decision in Gulam Khader and Another Vs. United India Insurance Company Limited and Another, . The loss of dependency would thus comes to 24,900x15= Rs. 3,73,500-

As regards the deduction made by the Tribunal on account of payment received by the claimant from the LIC, we need refer only to the decision of the Supreme Court in Mrs. HELEN C REBELLO AND OTHERS vs MAHARASHTRA STATE ROAD TRANSPORT CORPORATION AND ANOTHER. The Apex Court as in the said case observed thus:

"Thus, it would not include that which claimant receives on account of other form of deaths, which he would have received even apart from accidental death. Thus, such pecuniary advantage would have no co-relation to the accidental death but that would have come to the claimant even otherwise, could not be construed to be the `pecuniary advantage'', liable for deduction. However, where the employer insures his employees, as against injury or death arising out of an accident, any amount received out of such insurance on the happening of such incidence may be an amount liable for deduction. However, our legislature has taken note of such contingency, through the proviso of Section 95 Under it, the liability of the insurer is excluded in respect of injury or death, arising out of, in the course of employment of an employee.

This is based on the principle that the claimant for the happening of the same incidence may not gain twice from two sources. This, it is excluded thus, either through the wisdom of legislature or through the principle of loss and gain through deduction not to give gain to the claimant twice arising from the same transaction, viz, same accident. It is significant to record here-in both the sources, viz., either under the Motor Vehicles Act or from the employer, the compensation receivable by the claimant is either statutory or through the security of the employer securing for his employee but in both cases he receives the amount without his contribution. How thus an amount earned out of one''s labour of contribution towards one''s wealth, savings etc., either for himself or for his family which such person knows, under the law, has to go to his heirs after his death either by succession or under a will could be said to be the ''pecuniary gain'' only on account of one''s accidental death. This, even otherwise than the accidental death. No relation 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 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 insurer indemnifies to pay the sum to the heirs, again in terms of the contracts for the premium paid. Again, this amount is receivable by the claimant not on account of any accidental death but otherwise on 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 have no co-relation 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 similar and same plane having nexus inter se between them and not to which, there is no Semblance of any co-relation. The insured (deceased) contributes his own money for which he receives the amount has no co-relation to the compensation computed as against of course, is a pecuniary gain but how this is equitable or could be balance out of the amount to be received as compensation under the Motor Vehicle Act. There is no co-relation between the two amounts. Not even remotely. How can an amount of loss and gain of one contract could be made applicable to the loss and gain of another contract Similarly, how an amount receivable under a statute has any co-relation with an amount earned by an individual Principle of loss and gain has to be on the same place within the same sphere, of course, subject to the contract to the contrary or any provisions of law"

The decision of a Division Bench of this Court in Subbanna Shetty Vs. Sarojini, to the extent the same holds that payment received from the Life Insurance Company are deductible on account of the policy held by the deceased himself declared to be no longer good law in the light of the decision of the Apex Court in Mrs. Helen C. Rebello''s case supra.

There is one other aspect that need be noticed before parting.The Tribunal has not made any award on account of loss of estate. In the ordinary course we would have modified the award to that extent also but we do not consider it necessary to do so having regard to the fact that the Tribunal has awarded a sum of Rs. 5,000/- under the head "mental agony" to the claimants. In our opinion, the award of the said amount can more appropriately be treated as an award on account of the loss of estate making award of any further amount unnecessary. To sum up, the claimant shall be entitled to receive the following amount towards compensation.

Rs. 1. Towards loss of dependency 3,73,500.00 2. Towards Loss of consortium 10,000.00 3. Towards Loss of estate 5,000.00 4. Towards funeral expenses 2,000.00 ------------ 3,90,500.00 ------------

Mr. Sowri Raju learned Counsel for the Insurance company points out that the entire amount awarded by the Tribunal has since been deposited by the insurance company. If that be so, the insurance company shall also pay the balance amount payable to the claimant in terms of this judgment and award within six weeks from today. The principal amount shall earn interest at the rate of 8% per annum from the date of the claim petition till the date of deposit. The Tribunal shall be free to make a further order regarding investment of the amount so deposited or its disbursement to the claimant in such proportion, as it deems fit. The appeal is allowed in part and to the extent indicated above in modification of the award made by the Tribunal Parties are left to bear their own costs.