United India Insurance Company Limited vs Rani and Others

S. Manikumar, J.—Husband of the first respondent died in an accident which occurred on 19.09.2002, while he was on his wheels in a bus

owned by the State Express Transport Corporation. Legal representatives of the deceased viz., wife, children and parents have made a claim for

compensation of Rs. 25,00,000/-. Tribunal, on consideration of pleadings and evidence, awarded compensation of Rs. 7,62,000/- with interest at

the rate of 7.5% per annum from the date of claim petition. Aggrieved by the determination of the monthly income of the deceased and the

computation of quantum of compensation, the insurance company has preferred this appeal.

Since, the challenge in the appeal is restricted to quantum of compensation, it is not necessary to go traverse into the details relating to

negligence.

Heard Mr. S. Ramachandran, learned Counsel for the appellant and Mr. A.S. Gopalamanickam, learned Counsel for the respondents 1 to 5.

Placing reliance on the decision of the Hon''ble Supreme Court reported on Asha and Others Vs. United India Insurance Co. Ltd. and Another,

, learned Counsel for the appellant submitted that the Tribunal ought to have taken the net salary of the deceased for the purpose of assessing the

pecuniary loss to the claimants/respondents. He further submitted that since the deduction in the salary is not reflected in Ex.P15, Salary

Certificate, the claimants have not proved the actual monthly income earned by the deceased, and therefore, the Tribunal ought not to have taken

the gross salary for arriving at the loss of income. Learned Counsel for the appellant further submitted that the Tribunal ought to have applied a

lesser multiplier for computing the dependency compensation.

Wife of the deceased, who was aged 25 years at the time of accident examined herself as PW1 and deposed that her husband was a driver in

the state Express Transport Corporation, and was earning Rs. 6,000/- per month. The deceased was survived by his wife, two minor children and

aged parents. He was 31 years at the time of accident and he had 27 years of remaining service. She has further deposed that due to the sudden

demise of her husband, she has lost the consortium of her husband and at their tender age, her minor children have lost love and affection or their

father.

In the absence of evidence that the deceased had immediate prospects for further promotion in service, the Tribunal fixed the monthly income of

the deceased at Rs. 5,186/- and applied multiplier ""17"" for awarding dependency compensation of Rs. 7,62,000/-. A perusal of Ex.P16 Salary

Certificate dated 12.08.2004 issued by the Assistant Manager (Wage Admn.), State Express Transport Corporation (Tamil Nadu - Division-1)

Chennai - 600 002, shows the monthly salary of the deceased with deductions, on the date of accident, as follows:

Basic Pay : Rs. 3,290/-

Special Pay : nil

S.B.P.A. : nil

Special Allowance : nil

Fixed D.A. : nil

Variable D.A. : Rs. 972/-

House Rent Allowance: Rs. 494/-

City Compensatory : Rs. 165/-

Allowance

Attendance Allowance : Rs. 50/-

Health Allowance : Rs. 171/-

Laundry Allowance : Rs. 44/-

Total : Rs. 5,186/-

It is evident from Ex.P16, salary certificate, a sum of Rs. 193 was deducted towards contribution to L.I.C. and in so far as other recoveries from

the salary, it is mentioned as follows:

E.P.F. : --

PENSION : As per Rules

CONTRIBUTION

Voluntary : 0.00

Contribution

In Asha and Others Vs. United India Insurance Co. Ltd. and Another, , the Hon''ble Supreme Court was pleased to consider the arguments of

the learned Counsel as to whether the High Court was correct in deducting the allowances and the amounts paid towards L.I.C., Security Purpose

and H.B.A. from the monthly income for computing compensation and pleased to uphold the deductions made by the High Court. The Hon''ble

Supreme Court in Mrs. Helen C. Rebello and Others Vs. Maharashtra State Road Transport Corpn. and Another, considered whether the life

insurance money of the deceased can be deducted from the claimant''s compensation receivable under the Motor Vehicles Act, 1939. After

referring to various enactment''s relating to the social security scheme under the Insurance Act, the Apex Court held that the Insurance amount

cannot be deducted. The Apex Court further held that the insurance amount payable to the legal representatives of the deceased has no nexus

whatsoever with the statutory compensation payable under the Motor Vehicles Act.

Again in United India Insurance Co. Ltd. Vs. Patricia Jean Mahajan and Others Etc. Etc., , the Supreme court confirmed its view that the

receipts on account of insurance policy and social security benefit received by the claimants from out of the contribution of the deceased are not

liable to be deducted from the total compensation awarded to the kith and kin of the victim in the accident.

This Court after considering the decisions of various High courts, as well as the principles laid down by the Supreme Court in awarding the

compensation, in The Manager, National Insurance Co., Ltd. v. Padmavathy and 8 Ors. reported in 2007 2 LW.182 in paragraph 8 of the

judgment held as follows:

General Provident Fund Act, 1945 is a beneficial enactment with the object that the employee, either from public sector or private sector in case of

retirement should have some means to life or in case of death his dependants should have some means to live. Contributions are made by the

employee towards provident fund and by the employee towards provident fund and by the employer in equal proportion which carries interest. An

employee can avail loan facility from the said amount, depending upon the necessities, such as illness, marriage expenses, or any other bona fide

reason. The amount of contribution from his salary towards provident fund is only the part of his savings and if the employee dies during the course

of his employment, whatever savings he had with accrued interest will be refunded. In other words, it is only a deferred payment and the

contribution which are made is savings. Similarly, the contribution which are made under the Group Insurance Scheme, a part of social security

system is also savings, which are refunded to the employee.

Income tax, Professional tax which are deducted from the salaried person goes to the coffers of the government under specific head and there is no

return. Whereas, the General Provident Fund, Special Provident Fund. L.I.C., Contribution are amounts paid specific heads, and the contribution

is always repayable to an employee at the time of voluntary retirement, death or for any other reason. Such contribution made by the salaried

person are deferred payments and they are savings. The Supreme Court as well as various High Courts have held that the compensation payable

under the Motor vehicles Act is statutory and that the deferred payments made to the employee are contractual. Courts have held that there cannot

be any deductions in the statutory compensation, in the Legal Representatives are entitled to lumpsum payment under the contractual liability. If the

contributions made by the employee which are otherwise savings from the salary are deducted from the gross income and only the net income is

taken for computing he dependency compensation, then the Legal Representatives of the victim would lose considerable portion of the income. In

view of the settled proposition of law, I am of the view, the Tribunal can make only statutory deductions such as Income tax and professional tax

and any other contribution, which is not repayable by the employer, from the salary of the deceased person while determining the monthly income

for computing the dependency compensation. Any contribution made by the employee during his life time, form part of the salary and they should

be included in the monthly income, white computing the dependency compensation.

The Supreme Court in Utter Pradesh State Road Transport Corporation v. Trilok chandra reported in 1996 ACJ 851, State of Haryana and

Anr. v. Jashir kaur and Ors. reported in 2004(1) L.W. 1, and Mrs. Helen C. Rebello and Others Vs. Maharashtra State Road Transport Corpn.

and Another, held that the compensation awarded to the victim should be ''just'' which would denote equity, fairness and reasonableness and it

should not be treated as bonanza. In the Divisional Controller, KSRTC v. Mahadeva Shetty and Anr. reported in AIR 2003 SCW 3797 in

paragraph 15, the Supreme Court held that,

It has to be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award determining the

amount of compensation which to it appears to be ''just''. It has to be borne in mind that compensation for loss of limbs or life can hardly be

weighed in golden scales. Bodily injury is nothing but a deprivation which entitles the claimant to damages. The quantum of damages fixed should

be in accordance to the injury. An Injury may bring about many consequences like loss of earning capacity, loss of mental pleasure and many such

consequential losses. A person becomes entitled to damages for the mental and physical loss, his or her life may have been shortened or that he or

she cannot enjoy life which has been curtailed because of physical handicap. The normal expectation of life is impaired. But at the same time it has

to be borne in mind that the compensation is not expected to be a wind fall for the victim. Statutory provisions clearly indicate the compensation

must be ""just"" and it cannot be a bonanza; not a source of profit but the same should not be a pittance. The Courts and Tribunals have a duty to

weigh the various factors and quantify the amount of compensation, which should be just. What would be ""just"" compensation is a vexed question.

There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at a

precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any.

Every method or mode adopted for assessing compensation has to be considered in the background of ""just"" compensation which is the pivotal

consideration. Though by use of the expression ""which appears to it to be just"" a wide discretion is vested on the tribunal, the determination has to

be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression ""just"" denotes

equitability, fairness and reasonableness, and non arbitrary. If it is not so it cannot be just.

In the case on hand, the deceased was aged 31 years at the time of accident and he had 27 years of remaining service. The first

respondent/wife was aged about 25 years at the time of the claim. Considering the remaining period of service, the deceased would have

contributed a reasonable amount to the family for a longer period till his retirement. The contribution as evidenced from Ex.P16 Salary Certificate is

only voluntary contribution which are otherwise deferred payments receivable at the time of voluntary retirement, Superannuation or in the case of

death. If the insurance company had any serious doubts about the monthly income of the deceased at the time of accident, nothing prevented them

from summoning documents from the Assistant Manager (Wages Administration) of State Express Transport Corporation to disprove the claim.

PW8 Assistant of the Transport Corporation has deposed that ho does not know the actual deductions made by the department and it is not

reflected in Ex.P16. Last Pay Certificate Ex.P16 has been issued by the Assistant Manager (Wages Administration) of the State Express

Transport Corporation.

A perusal of the Ex.P17, Service Register shows that the claimants/legal representatives have been provided immediate Relief Fund of Rs.

5,000/- by order dated 24.09.2002. A further sum of Rs. 1,00,000/- has been sanctioned under Orders of the State Express Corporation and

after deducting Rs. 5,200/- the first respondent wife has been paid Rs. 94,800/-. The gratuity amount of Rs. 4,918/-, Earned leave amount of Rs.

3,723/-, Leave Salary for 23 days was also paid to the first respondent/wife. If there was any recovery to be made from the salary of the

deceased towards loan or for any statutory deductions, the same would have reflected in the Last Pay Salary Certificate or in the Ex.P17 Service

Register of the deceased. In the absence of any recovery from the Salary towards loan or statutory deductions it could be reasonably presumed

that the deceased would have earned Rs. 5,186/- as his monthly income at the time of the accident.

It is also evident from Ex.P17, Service Register that the Assistant Manager (Wages Administration), who signed Ex.P16, Salary Certificate is

the signatory in Ex.P17, Service Register. The Supreme Court in Jasbir Kaur''s case reported in 2004(1) LW. 1 has fixed the monthly income of

an agriculturist at Rs. 3,000/- per month, in the absence of proof of income, applying the principle of ""just"" compensation. When the oral testimony

of PW1 is supported by the Ex.P16 Salary Certificate and Ex.P17 Service Register, where no deductions have been shown and applying the

principles of the Supreme Court, I do not think that the Tribunal has arbitrarily fixed the monthly income of the deceased for computing depency

compensation. Considering the fact that the deceased had 27 years of remaining service and was supporting a family comprising of six persons,

including two minor children, he would have contributed Rs. 3,500/- per month to provide food, shelter and clothing to the dependants.

In computing dependency compensation, the Supreme Court has held that the choice of the multiplier should be with reference to the age of

the deceased or that of the claimants whichever is higher, but the ascertainment by multiplier method depends on facts and circumstances of the

case. The principles that are to be applied for awarding ""just"" compensation are, that there should be judicious approach, equitability and fairness

and not out of arbitrariness. The Apex court has also held that there should not be any deviation from the multiplier method except for exceptional

circumstances. The multiplier applicable to the age group of persons between 30 and 35 as per the Second Schedule to Section 163A years is

17"". Therefore, the choice of the multiplier by the Tribunal for computing dependency compensation is not arbitrary.

In the result, I do not find that the Tribunal has applied any wrong principles of Law in fixing the monthly income of the deceased and in the

multiplier for awarding depency compensation. Hence, the Award is confirmed and the appeal is dismissed. Consequently, the connected C.M.P.1

and 2 of 2007 is also closed. No costs.