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Judgment
S. Manikumar, J.—Challenge in this appeal is with regard to quantum of compensation, manner of accident and the liability of the Insurance Company. Though the Civil Miscellaneous Appeal was listed on 3.7.2008, 4.7.2008, 7.7.2008, 8.7.2008, 9.7.2008 and 10.7.2008, there was no representation for both parties. Today also there is no representation. Therefore, this Court is constrained to take up and decide the appeal on its merits.
Facts leading to the Civil Miscellaneous Appeal are as follows:
On 10.2.2005, about 10.30 a.m., when the deceased Somasundaram was riding his Hero Honda motor cycle from Puliankudy-Sankarankovil Main Road, near Duraisamiapuram bus stop, from east to west, a bus bearing Registration No. TN-67-Q-5959 owned by the fifth respondent and insured with the appellant/Insurance Company, came from the opposite direction in a rash and negligent manner knocked down the Motor Cyclist, causing his death. Legal representatives/Dependants, wife, daughter and two sons claimed compensation of Rs. 10,00,000/-. Before the Tribunal the owner of the vehicle remained ex-parte. The appellant/insurance company, in their counter affidavit disputed the manner of accident and further stated that the bus was driven in a careful manner by the driver, by observing rules and regulations, whereas the deceased without noticing the movement of the vehicle at the road junction, in a rash and negligent manner, dashed against the bus owned by the fifth respondent and insured with the company. The Appellant/Insurance Company contended that the accident had occurred only on the fault of the deceased, for which, they are not liable to pay compensation.
The appellant/Insurance Company has further contended that at the time of accident, the deceased Shanmugasundaram was riding the Motor Cycle TN.76-Z-5997 without any valid driving licence and therefore, when there is a fundamental breach of the policy condition, the Insurance Company is not liable to pay the compensation. On the question of quantum of compensation, the appellant/Insurance Company has contended that the wife of the deceased was receiving family pension for herself and the other claimants viz., married daughter and self earning major sons are not eligible for compensation. The appellant/Insurance Company also contended that the rate of interest claimed on the quantum of compensation is on the higher side.
Before the Tribunal, wife of the deceased examined as P.W.1 has reiterated the manner of accident and an eye witness, P.W.2 was examined. Ex.P1-First Information Report, Ex.P.2-Postmortem Report, Ex.P.3 -Rough Sketch, Ex.P.4-Final Report and Ex.P.5-Pension Book were marked on behalf of the claimants/respondents. At the time of accident, the deceased was a retired Assistant Educational Officer and was paid pension of Rs. 6,313/- per month. On evaluation of pleadings and evidence, the Tribunal determined the dependency compensation at Rs. 4,04,032/- and awarded a compensation at Rs. 10,000/- for Loss of Consortium, Rs. 12,000/- for loss of Love and Affection to be shared equally between the respondents/claimants, Rs. 2,000/- for Funeral Expenses and Rs. 8,000/- for Shock and Agony. Altogether, the Tribunal awarded compensation at Rs. 4,36,000/- with interest at the rate of 7.5% p.a. Aggrieved by the award, the appellant/Insurance Company has preferred this Civil Miscellaneous Appeal.
Inter-alia the appellant has contended that the Tribunal has erred in holding that the accident had occurred due to the negligent driving of the vehicle. It is further contended that after the demise of the retired employee, P.W.1-wife of the deceased, is receiving family pension of Rs. 4,209/- per month and even during the life time of the deceased, he would have contributed only Rs. 4,000/- per month and therefore, the appellant/Insurance Company submitted that there is no loss of income to the family and consequently the award of Rs. 4,04,000/- towards loss of income is liable to be set aside. The appellant/Insurance Company has further contended that the Tribunal erred in applying "8" multiplier for arriving at the dependency compensation.
Though the appellant/Insurance Company has disputed the manner of accident, they have not let in any oral or documentary evidence to contradict the version of the respondents/claimants. On the contrary, the oral testimony of P.W.1, wife of the deceased is amply corroborated by Ex.P1-First Information Report, Ex.P.3-Rough Sketch and Ex.P.4-Final report submitted by the police. Further the evidence of P.W.2, an eye witness, author of Ex.P.1-First Information Report has not been contradicted. It is now well settled that preponderance of probability is the test in motor accidents claims cases and that strict proof of evidence is not required. When a dispute has been raised as regards the manner of accident, the appellant ought to have let in strong and reliable evidence to rebut the same. Upon perusal of the impugned judgment, this Court is satisfied that the finding recorded by the Tribunal is based on acceptable evidence and therefore, it cannot be termed as perverse warranting interference.
On the issue of application of higher multiplier, perusal of the judgment shows that the age of the deceased as per Ex.P.2-Postmortem Report is 59 years. The date of birth entered in Ex.P.5-Pension Book is 13.7.1945. Based on the above said two documents, the Tribunal has determined the date of birth as 59 years. It is trite law that second schedule Section 163(A) of the Motor Vehicles Act, 1988 can be taken as guidance for computing dependency compensation. The deceased was a retired Assistant Educational Officer of the State Service and was paid a monthly pension of Rs. 6,313/-.
P.W.1, wife of the deceased was aged about 55 years at the time of accident. Having regard to the longevity of Indian citizens, and the principles of law for choosing the multiplier as held in General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, and followed in many judgments of the Supreme Court, I do not find any manifest error in applying "8" multiplier, to compute the dependency compensation. Even as per the schedule, for age group of persons between 55 and not exceeding 60 years, "8" is the proper multiplier.
As regards the contention of the appellant/ Insurance Company that the deceased did not have a valid and effective driving licence at the time of accident, there is absolutely no oral and documentary evidence let in by the appellant/Insurance Company to prove that they have taken adequate steps in support of their contention.
In the absence of any evidence to prove that the deceased did not hold any valid licence, the contention of the company is unacceptable. The last contention of the appellant/insurance company that P.W.1-wife of the deceased is paid a family pension of Rs. 4,209/- per month and therefore, there is no loss of income to the extent of Rs. 4,04,000/- as quantified by the Tribunal, is no longer, integra, as Courts in India have held that deduction of compensation, on account of receipt of family pension given to the members of the deceased family as illegal. Some of the decisions of the various High Courts and Supreme Court are extracted hereunder.
In Nirmala and Others Vs. Child Development Project Officer and Others, , a learned single Judge of the Himachal Pradesh High Court held that there cannot be any embargo on the right of claimants to receive compensation on the ground that they have received amount in the form of retiral benefits, such as employment on compassionate grounds; Provident Fund, Pension, Gratuity etc.
In the above reported case, legal representatives of the deceased workman claimed compensation. One of the issues raised before the Commissioner for Workmen''s Compensation was that the claimants were not entitled for compensation on account of receipt of the retiral benefits. Replying the said contention, at paragraph 11 of the judgment, the Court held as follows:
As noticed, Section 3 of the Act is the one provision which lays down the right of the workman and correspondingly of the legal representatives (in the case of death of the workman) to receive compensation. Section 3 nowhere places any embargo, nor creates any fetters in the enjoyment of this right merely because the workman or his legal representatives might have received any amount of compensation, other than the compensation under the Act, in the form of retiral benefits, or any other benefit under service rules such as pension, provident fund, gratuity, etc., or even any ex-gratia amount because the compensation receivable under the Act is a special right created by the statute, namely, Section 3 of the Act and that right cannot be tinkered with or taken away just because under the service rules, the workman or his legal representatives might have received amount(s) from the employer. Similarly, merely because a family member of the workman after his death, be it his wife or anybody else, might have been employed on compassionate grounds, or on any other ground, also cannot be a reason or cause in depriving the workman or his legal representatives from receiving compensation because Section 3 nowhere creates any such fetters on the right of the workman or his legal representatives to receive the compensation. The right to receive compensation u/s 3 is not subject to any of the aforesaid or other contingencies nor can it be extinguished on account of any such or other events or happenings.
While explaining the concept of just compensation to be awarded to the victim of the road accident cases, the Supreme Court, in National Insurance Company Ltd. Vs. Indira Srivastava and Others, of the judgment held that,
The term "income" has different connotations for different purposes. A Court of law, having regard to the change in societal conditions must consider the question not only having regard to pay-packet the employee carries home at the end of the month but also other perks which are beneficial to the members of the entire family. Loss caused to the family on the death of a near and dear one can hardly be compensated on monetary terms.
With regard to the ascertainment of loss of income due to death of resulting in motor accident cases, the Supreme Court, United India Insurance Co. Ltd. Vs. Patricia Jean Mahajan and Others Etc. Etc., held as follows:
Similarly, how an amount receivable under a status has any co-relation with an amount earned by an individual. Principle of loss and pain has to be on the same line within the same sphere, of course, subject to the contract to the contrary or any provisions of law. The Court has further referred to receipts of provident fund which is a deferred payment out of contribution made by an employee during tenure of his service. Such an amount is payable is irrespective of the accidental death of the employee. The same is the position relating to the family pension. There is no co-relation between the compensation payable on account of accidental death and the amounts receivable irrespective of such accidental death which otherwise in the normal course one would be entitled to receive.
Following the decision of the Supreme Court, a Division Bench of the Punjab and Haryana High Court in National Insurance Company v. Renu Bala and Ors. reported in II (2005) A.C.C. 495 (DB) held that the family pension received by the claimants should not be deducted in determining the dependency of claimants.
A Division Bench of the Rajasthan High Court on an occasion to consider the same issue and United India Insurance Company v. Gora Devi and Ors. reported in III (2005) ACC 124 (DB) at paragraph No. 11 of the judgment held as follows:
The deduction of the pension amount, which the widow would have received as family pension, by the learned Tribunal is ex facie erroneous. The pensionary benefits would have been available to the widow of the deceased Government servant irrespective of the fact whether he died in the accident or natural death and it has no relevance to the cause of death of the deceased. Thus it cannot be taken a benefit to the extent to deduct the same from the monthly contribution of the deceased making to the family. Our this view is fortified by the decision of the Hon''ble Apex Court in N. Sivammal and Ors.. v. M.D.Pandian Roadways Corporation and Anr. I (1985) ACC 47. We do not find any error in the approach and decision of the learned Single Judge not to deduct the amount of family pension, which the widow of the deceased would have been receiving.
Dealing with the similar question as to whether reduction could be made from the damages awarded under head loss of income, on account of family pension being paid to the claimants, a Division Bench of the Gujarat High Court in Revaben and Ors. v. Kantibhai Narottambhai Gohil and Anr. reported in I (1996) A.C.C 83 (DB) at paragraph No. 5.2 of the judgment has held as follows:
5.2. Moreover, on a question of principle itself, no deduction could have been made from the damages awardable under this head, on account of the family pension which would be available to the claimants on account of the death of the deceased. We have no doubt that no such deduction was permissible. The basic principle underlying the inadmissibility of such deductions is that the damages for the tortious act which are awardable to the claimants are on the basis that the tortfeasor has committed the acts in question for which he is liable to pay damages. Obviously, the tortfeasor cannot be permitted to take advantage of his own wrong. If in fact, deductions were made on account of certain benefits which may accrue to the claimants on account of the death of the deceased and if a set-off is given in respect of these amounts against the damages awardable, it would amount to conferring an advantage upon the tortfeasor. Even on basic principles, no such deduction can be made inasmuch as the benefits which would accrue to the dependents of the deceased are benefits which would even otherwise have accrued to the claimants on the death of the deceased, irrespective of how he had died. These principles are by now well settled and do not merit a lengthy discussion. Suffice it to say that these principles have been settled by a Division Bench of this Court in the case of Prataprai Arjandas Dhameja v. Bhupatsingh Gagli 1982 ACJ 316 (Guj) and also in the case of Arunaben v. Mehmoodbhai Imamali Kaji 1983 ACJ 409 (Guj).
Similar view has been expressed by a Division Bench of Madhya Pradesh High Court in Fulmathi Bai v. Panchamsing and Ors. reported in II (1998) ACC 651 (DB) and at paragraph Nos 7, 8 and 10 the Court held as follows:
The main issue to be decided in the present case is whether the amount of Rs. 400.00 p.m which was drawn by the widow of the deceased towards family pension can be deducted while working out the dependency of the deceased''s family for calculation of compensation. The family pension is paid in lieu of the services rendered by the incumbent and that is a secured amount notwithstanding the death of the incumbent. The compensation is normally paid to the dependents on account of the fact that because of the death of the deceased, the family members were deprived of the amount which he would have spent on the family members. Therefore, the dependency of the family members qua death of the deceased has to be worked out. Simply because the deceased might get some gratuity or pension in lieu of the services rendered by him, has nothing to do with the working out of the dependency of the family members of the deceased. What one has to work out is the actual dependency of the family members of the deceased and if the deceased had lived, then how much he would have contributed towards the family members. Therefore, simply because the deceased''s widow is getting some family pension, that should not be taken into consideration for working out the dependency of the family members of the deceased.
Similar question came up before a Full Bench of this Court in the case of Kashmiran Mathur (supra). In this connection, their Lordships examined the matter in detail and observed that it depends upon so many factors, whether the pension may be contributory or non-contributory, whether the family pension is payable on the basis of contributions made by an employee in some form, or the other or it may be entirely paid by the employer. Their Lordships further observed that assuming that such pension is non-contributory paid by the employer of his own, deduction can only be made if the Tribunal had included all the probable benefits available to the deceased in his full span of life while determining the amount of compensation. However, their Lordships, after examining the matter, found that there was no such material placed before them and, therefore, they observed that deduction on account of family pension paid to the widow and other dependents of the deceased cannot be made.
Simply because the widow of the deceased is entitled to family pension or other perquisites on account of the death of her husband, has no co-relation with the dependency which has to be worked out under the Motor Vehicles Act. As per the service conditions, even otherwise also, in normal course, if a husband dies a natural death, then also family pension is paid to the deceased''s dependents. Today also the perquisites which are being paid to the dependents of the deceased even while serving in the Institutions, are social measures and they have nothing to do with the death of the deceased while dying a natural death or by accident. Therefore, on account of the death of the deceased in an accident, such amount cannot be taken into consideration, because even otherwise also in normal course, in the event of natural death, the family members of the deceased are entitled to that benefit. Therefore, that cannot be taken into consideration for working out the dependency of the family members.
In Savithri @ Savithramma @ Vijayalakshmi and Ors. v. Ramappa and Anr. reported in III (2004) ACC 544 (DB), the Karnataka High Court after analyzing a full bench judgment of the same Court in Smt. Parvati @ Baby and Ors. v. Hollur Hallappa and Ors. reported in I (1998) ACC 689 and the decision of the Supreme Court in Mrs. Helen C. Rebello and Others Vs. Maharashtra State Road Transport Corpn. and Another, , at paragraph No. 5 of the judgment held as follows:
The forensic debate at the Bar was limited to the amount of compensation payable to the claimants. Mr. Hiremath made a two-fold 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 Ors. II (1998) ACC 512 (SC): VII (1998) SLT 585 :1998 (7) Supreme 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.
In yet another decision, a Division Bench of the Madhya Pradesh High Court in Union of India through B.S.F. v. Vijay Sundari and Ors. reported in I (1992) ACC 449 (DB) at paragraph 8 of the judgment observed, deduction on account of family pension is not permissible if that is not "proved as a benefit accruing to the claimants in the form of advantage resulting from the death".
In Mrs. Nalini v. Vijayprasad reported in I(2005) ACC 563, a learned single Judge of Bombay High Court, after considering the decision of the Division Bench of the same Court, in United India Insurance Co. Ltd. v. Abdul Munaf Majur Hussain Momin 1984 ACJ 653, at paragraph 17, held that it is obvious that while computing the loss of dependency, it is not permissible to make deductions on account of family pension, gratuity, provident fund, life insurance premium, etc. Therefore, the Tribunal was not justified in deducting the family pension which claimant-widow is getting after the death of Mukundrao Bhoyar".
What is meant by pecuniary loss caused to the dependents on account of accidental death in claims made under Motor Vehicles Act is explained by the Supreme Court in Mrs. Helen C. Rebello and Others Vs. Maharashtra State Road Transport Corpn. and Another, , at paragraph Nos.32, 33, 34 and 35 has held as follows:
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 the extent a stature 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, correlating with the accidental death. The compensation payable under the Motor Vehicle 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 a motor vehicle, it would not be covered under the Motor Vehicles Act. Thus, the application of the general principle under the common law of loss and gain for the computation of compensation under this Act must correlate to this type of injury or death, 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 forms of death.
Thus, it would not include that which the claimant receives on account of other forms of deaths, which he would have received even apart from accidental death. Thus, such pecuniary advantage would have no correlation to the accidental death for which compensation is computed. Any amount received or receivable not only on account of the accidental death but that which 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 employee, as against injury or death arising out of an accident, any amount received out of such insurance on the happening of such incident 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 and 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 the legislature or through the principle of loss and gain through deduction not to give gain to the claimant twice arising form the same transaction, viz., the 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 or 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, of course, is a pecuniary gain but how this is equitable or could be balanced out of the amount to be received as compensation under the Motor Vehicles Act. There is no correlation between the two amounts. Not even remotely. How can an amount of loss and gain of one contract be made applicable to the loss and gain of another contract. Similarly, how an amount receivable under a statute has any correlation with an amount earned by an individual. Principle of loss and gain has to be on the same plane within the same sphere, of course, subject to the contract to the contrary or any provisions of law."
Broadly, we may examine the receipt of the provident fund which is a deferred payment out of the contribution made by an employee during the tenure of his service. Such employee or his heirs are entitled to receive this amount irrespective of the accidental death. This amount is secured, is certain to be received, while the amount under the Motor Vehicles Act is uncertain and is receivable only on the happening of the event, viz., accident, which may not take place at all. Similarly, family pension is also 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. No correlation 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 the 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, the insurer indemnifies to pay the sum to the heirs, again in terms of the contract for the premium paid. Again, this amount is receivable by the claimant not on account of any accidental death but otherwise on the 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 correlation 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 a similar and same plane having nexus, inter se, between them and not to which there is no semblance of any correlation. The insured (deceased) contributes his own money for which he receives the amount which has no correlation to the compensation computed as against the tortfeasor for his negligence on account of the accident. As aforesaid, the amount receivable as compensation under the Act is on account of the injury or death without making any contribution towards it, then how can the fruits of an amount received through contributions of the insure be deducted out of the amount receivable under the Motor Vehicles Act. The amount under this Act he receives without any contribution. As we have said, the compensation payable under the Motor Vehicles Act is statutory while the amount receivable under the life insurance policy is contractual.
The above well defined legal position has been reaffirmed by the Supreme Court in one of its recent decisions in Lal Dei and Ors. v. Himachal Road Transport reported in (2007) 8 S.C.C. 319 and at paragraph No. 4, the Supreme Court considered and held as follows:
It is contended by the learned Counsel for the appellant that while calculating the dependency, the Motor Accidents Claims Tribunal as well as the High Court committed an error in deducting the family pension amount. We find that the submission made by the counsel for the appellant is correct. The Motor Accidents Claims Tribunal as well as the High Court could not have deducted the amount of family pension given to the family, while calculating the dependency of the claimants. In Helen C. Rebello v. Maharashtra SRTC this Court has specifically dealt with this question and said that the family pension is 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. There is no co-relation between the two and therefore, the family pension amount paid to the family cannot be deducted while calculating the compensation awarded to the claimants. In view of this, the appeal is allowed. The order of deduction of the family pension is set aside.
In the light of the decisions of the Supreme Court as well as various High Courts across the country, the contention of the appellant/Insurance Company that the family pension amount received by the respondents/claimants ought to have been deducted while computing the dependency compensation is liable to be rejected and accordingly rejected. The finding of negligence, application of multiplier, for computing the loss of income of the deceased is confirmed. I see no grounds to interfere with the order of the Motor Accident Claims Tribunal, (I Additional District Court) Tirunelveli in M.C.O.P.No.66 of 2006 dated 29.01.2007.
In the result, the Civil Miscellaneous Appeal is dismissed. No costs. Consequently, connected Miscellaneous petition is also closed.