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Judgment
Satya Brata Sinha, J.—This appeal is directed against a judgment and award dated 28.2.2000 passed by Sri S. Chakraborty, learned Tribunal Judge and Second Additional District Judge, Alipore, South 24 Parganas in M.A.C. Case No. 125 of 1999, whereby and whereunder the application for compensation filed by the appellants herein was allowed in part awarding a sum of Rs. 57,500/-. The victim died as a result of an accident which took place on 13.12.98. The application was filed by the appellants, who are wife and two sons of the deceased. No defence was taken either as regards involvement of the offending vehicle or with regard to rashness and negligence on the part of the driver thereof. The learned Tribunal came to the conclusion that the deceased was a pension holder and was earning a sum of Rs. 4951/-. As one of the witnesses, namely, his son stated that their mother has been receiving Rs. 2500/- per month by way of family pension, the learned Tribunal held that the monthly loss suffered by the family would be Rs. 800/-. On that basis, the compensation was computed at Rs. 48,000/-. Over and above that sum, a sum of Rs. 2,000/- was granted in favour of the appellant No. 1 by way of loss of consortium. The learned Tribunal, however, made a clerical mistake and held that the total amount of compensation payable would be Rs. 57,500/-.
One of the questions which has been raised at the Bar is as to whether the learned Tribunal was correct in deducting the amount of family pension received by the appellant No. 1 herein from the amount of compensation.
Mr. Banik, learned counsel appearing on behalf of the appellants submitted that the learned Tribunal clearly erred in that regard, and in support of the said contention reliance has been placed on Mrs. Helen C. Rebello and Others Vs. Maharashtra State Road Transport Corpn. and Another, ., reported in 1993(2) AJR 173, S. Ashraf vs. Shaik Madar Sab & Ors., reported in 1993(1) ACC 693, M/s. Tata Engineering & Locomotive Co. Ltd. vs. Anantha Lakshmi, reported in 1995(1) TAC 602, Geethakumari and Others Vs. Rubber Board and Others, , Khashti Devi Vs. Amar Nath and Others, , Smt. Suki and Others Vs. Hem Singh and Others, , Charu Barman & Ors. vs. Satya Narayan Jiwan Ram & Ors., reported in 1998(2) TAC 505 as also a decision of the Karnataka High Court in Lalitha & Anr. vs. Dashanbhat Haribansh Bhat & Anr., reported in 2000 ACJ 2000.
Mr. Banerji, learned counsel appearing on behalf of the respondent, on the other hand, has placed strong reliance upon General Manager, General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, , Smt. Parvati @ Baby and Others Vs. Hollur Hallappa and Others, and S. Dhanaveni and others Vs. State of Tamil Nadu and others,
The question which has been raised at the Bar is squarely covered by a Division Bench decision of this court in Sm. Puspa Rani & Anr. vs. The New India Assurance Company Ltd. & Ors. (f.m.a.t. 3808 of 1998) disposed of on 22.12.99. In the said decision, apart from Helen C. Rebello (supra) the decision inS. Ashraf Bi vs. Shaik Madar Sah & Ors., reported in (1993)3 ACC 295, Sm. Sunder & Ors. vs. Hem Singh & Ors., reported in 1993(2) AJR 173, Smt. Suki and Others Vs. Hem Singh and Others, as also the decision relied upon by Smt. Parvati @ Baby and Others Vs. Hollur Hallappa and Others, ad been taken into consideration. In this view of the matter, it may not be necessary to consider all the decisions cited at the Bar. However, we may notice that in Helen C. Rebello (supra) a question was raised as to whether the amount of provident fund, family pension, cash balance, shares, fixed deposits etc., could be considered to be a pecuniary advantage for the purpose of Motor Vehicles Act. The Apex Court, relying on or on the basis of various decisions of the Apex Court, High Courts, as also the English and American Courts held that it could not be so done. The learned Judges referred to the provision of Section 110B of the Motor Vehicles Act, 1939 and compared the same with the provisions in the Fatal Accidents Act as also the English Act and held:
This Court, in this case did observe, though did not decide, to which we refer that the use of the words, "which appears to it to be just" u/s 110-B gives wider power to the Tribunal in the matter of determination of compensation under the 1939 Act. There is another case of this court in which there is a passing reference to the deduction out of the compensation payable under the Motor Vehicles Act. In N. Sivammal vs. Managing Director, Pandian Roadways Corpn. This court held that the deduction of Rs. 10,000 receivable as monetary benefit to the widow of the pension amount, was not justified. So. though deduction of the widow''s pension was not accepted but for this, no principle was discussed therein. However, having given our full consideration, we find there is a deliberate change in the language in the later Act, revealing the intent of the legislature, viz., to confer wider discretion on the Tribunal which is not to be found in the earlier Act. Thus, any decision based on the principle applicable to the earlier Act, would not be applicable while adjudicating the compensation payable to the claimant in the later Act.
The learned Judges also referred to Fleming on Law of Torts with a view to examine the question as to what would be the pecuniary loss of such dependant. The learned Judges further interpreted the word "Just" occurring in Section 110B of 1939 Act equivalent to Section 166 of the Motor Vehicles Act, 1988. It was laid down that the provision of the Motor Vehicles Act, 1939, is a beneficient legislation and should be treated as such. In Susamma Thomas (supra), the Apex Court was not concerned with the aforementioned question directly. The Apex Court was concerned only with the mode and manner in which the compensation should be computed. The ratio of a decision, as is well known, must be carved out from the fact situation obtaining in that particular case. General propositions of law laid down in a decision without reference to the fact situation involved therein, cannot be said to be laying down of a law within the meaning of Article 14 of the Constitution of India. In Susamma Thomas (supra), the Apex Court was concerned with the question as to whether the multiplier method is the appropriate method which should be adopted by the Tribunals in awarding compensation, and a departure therefrom can only be justified in rare and extraordinary circumstances and very exceptional cases. It was, therefore, not a case where the Apex Court was concerned with the question as to whether the family pension should be deducted from the amount of compensation or not. In any event, the advantage of family pension would not go to the sons of the deceased. Even the sons of the deceased were entitled to compensation, and as such, the same in any event, cannot be considered to be a relevant factor. As noticed hereinbefore, in Sm. Puspa Rani Saha (supra), this court has not followed the decision of Karnataka High Court in Smt. Parvati @ Baby and Others Vs. Hollur Hallappa and Others, , in as much as, therein the decision of the Apex Court in Helen C. Rebello could not be taken into consideration. For the self-same reason, the decision of a Division Bench of the Madras High Court in S. Dhanaveni and others Vs. State of Tamil Nadu and others, cannot be said to have laid down a good law as that case having been decided on 7.3.97 had no occasion to consider the latter decision of the Apex Court in Helen C. Rebello.
For the reasons aforementioned, the amount of compensation which is, therefore, to be calculated in terms of the provisions of the Motor Vehicles Act, would be as follows:
Pension of the deceased per annum
- Rs.
59,440/-
After deduction of l/3rd amount of
(Rs. 19,816/-) and multiplier of 5
(39,632/- x 5)
- Rs.
1,95,160/-
Funeral expenses
- Rs.
2,000/-
Pains, sufferings and loss of consortium
- Rs.
5.000/-
Rs.
2,05,160/-
The appellants have already received a sum of Rs. 50,000/-, which amount must be deducted from the total amount of compensation. The total amount of compensation, therefore, comes to Rs. 2,05,160/-. On the aforesaid amount, the appellants shall also be entitled to interest at the rate of 12% per annum from the date of filing of the application till the date of actual payment. Xerox certified copy of the order be supplied on priority basis.
Hrishikesh Banerji, J.
I agree.