Maya Devi and Ors. v. The Oriental Insurance Company Ltd. and Ors.

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether judgment should be reported in Digest? JUDGMENT: REVA KHETRAPAL, J.

1. The present appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and award dated 2011:DHC:3568 07.09.2009 passed by Motor Accidents Claims Tribunal, Dwarka Courts, Delhi in MACT No. 889/08.

2. The brief facts leading to the filing of the present appeal are that on 07.03.2006, one Shri Vijender Singh met with an accident while travelling on his motorcycle bearing no. DL-9SN-4753 alongwith his wife, Smt. Maya Devi. The said Shri Vijender Singh (hereinafter referred to as “the deceased”) died as a result thereof, whereas Smt. Maya Devi suffered injuries on her person. Two separate claim petitions bearing MACT No.887/08 and 889/08 were filed, the former by Smt. Maya Devi claiming compensation in respect of the injuries sustained by her and the latter seeking compensation for the death of her husband Shri Vijender Singh. Both these petitions were filed against the driver, owner and insurer of the offending vehicle, bearing No.HR-55-0936. The Tribunal decided both the said petitions by a common judgment and award dated 07.09.2009, awarding a sum of ` 99,000/- and ` 18,85,000/- in respect of Petitions No.887/08 and 889/08 respectively. The claimants in the Petition No. 889/08, that is, the widow, children and father of the deceased, being aggrieved by the manner of computation of compensation by the Tribunal have filed the present appeal for enhancement of compensation.

3. It emerges from the record of the Claims Tribunal that the learned Tribunal, for the purpose of computing compensation payable to the appellants, took into consideration the revised salary of the deceased in the sum of ` 11,533/-, excluding therefrom the travelling allowance of ` 600/-, that is, ` 11,533/- – ` 600/- = ` 10,933/-, rounded off to ` 11,000/-. Adding thereto 50% towards the future prospects of the deceased in consonance with the judgment of the Supreme Court in the case of Smt. Sarla Verma & Ors. Versus Delhi Transport Corporation and Anr. (2009) 5 SCR 1098, the Tribunal arrived at a sum of ` 16,500/- as monthly salary of the deceased. Thereafter, the Tribunal, observing that the widow of the deceased had been given the job of a „Beldar‟ by the Delhi Jal Board on compassionate grounds and was being given a monthly salary of ` 3,500/- per month, deducted the said amount from the monthly salary of the deceased. From the resultant amount of ` 13,000/-, the Tribunal deducted 1/4th towards the personal expenses of the deceased and calculated the monthly dependency of the appellants to be in the sum of ` 9,750/- (that is, ` 13,000 – ` 3,250 = ` 9,750) and the annual dependency in the sum of ` 1,17,000/-. Augmenting the said multiplicand by the multiplier of 15, the total loss of dependency was calculated by the Tribunal in the sum of ` 17,55,000/- (that is, ` 1,17,000 x 15). In addition to this, the Tribunal also awarded a sum of ` 1,00,000/- towards the loss of love and affection, ` 10,000/towards loss of consortium, ` 10,000/- towards funeral expenses and ` 10000/- towards the loss of estate of the deceased. In all, the Tribunal awarded a sum of ` 18,85,000/- to the appellants.

4. The only ground on which the aforesaid computation of compensation has been challenged by the appellants is that the Tribunal while calculating the loss of dependency of the appellants erred in reducing the salary of the deceased by a sum of ` 3,500/-, being the earnings of the widow from her employment as „beldar‟ (labourer) with the Delhi Jal Board. The learned counsel for the appellants contended that the widow who used to be a housewife prior to the death of her husband is now required to work extra hard to look after her family. It is further contended by the counsel that there are cases where the appointment on compassionate grounds is made after the passing of the award by the Tribunal, in which situation the person being given employment on compassionate grounds would be better off, as the compensation granted to such a person would be higher because no deduction would have been made by the Tribunal, and as such it would lead to discrimination between two similarly situated persons.

5. In support of his aforesaid contention, the learned Counsel for the appellants has relied upon the decision of the Delhi High Court in the case of National Assurance Company Ltd. Vs. Smt. Neelam and Ors. 2009 ACJ 992. The learned counsel for the respondent- Insurance Company, on the other hand, relied on the judgment of the Supreme Court in the case of Bhakra Beas Management Board v. Smt. Kanta Aggarwal and Ors. (2008) 11 SCC 366.

6. Before adverting to the said decisions cited at the bar it is proposed first to refer to the celebrated judgment of the Hon‟ble Supreme Court in the case of Helen C. Rebello & Others Versus Maharashtra State Road Transport Corpn. & Anr. (1999) 1 SCC 90, wherein the Supreme Court discussed the aspect of balancing of pecuniary advantage accruing to the victims of motor accidents against the pecuniary loss suffered by them to arrive at the compensation payable to them by the tortfeasor (s) under the Motor Vehicles Act, 1939. In the said judgment, the Apex Court explained that since the compensation payable under the Motor Vehicles Act is only on account of accidental injury or death and not on account of any other death, the balancing can also be done only in respect of that pecuniary gain/advantage which co-relates with the accidental injury or death. If pecuniary advantage from whatever sources accruing to the claimants are allowed to be set off against the compensation payable to them under the Motor Vehicles Act, the same would dilute all possible benefits conferred on the claimants and would be contrary to the spirit of the law and the liability of the tortfeasor would be unjustifiably reduced. The Court, in the said case, inter alia, made the following apposite observations: (SCC Page Nos. 109-113) “…………………………. 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 of the spirit of the law. …………………………. Thus, it would not include that which claimant receives on account other form of deaths, which he would have received even apart from accidental death. …………………….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. 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 co-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. ………………………….For all these consideration we have no hesitation to hold that such High Courts were wrong in deducting the amount paid or payable under the life insurance by giving restricted meaning to the provisions of the Motor Vehicles Act basing mostly on the language of English statutes and not taking into consideration the changed language and intends of the legislature under various provisions of the Motor Vehicles Act, 1939. ”

7. While this Court is conscious of the fact that the aforesaid decision was rendered by the Supreme Court with respect to the amount of life insurance policies received by the victims of motor vehicular accidents, there is no denying the fact that the principles enunciated therein would equally apply to a case where the widow or any other family member of the person who died in a motor accident has been given employment by the employer of the deceased on compassionate grounds. Infact, this Court and other High Courts have consistently applied the said principle to cases of compassionate appointment.

8. The first of these cases is the decision of this Court in the case of National Assurance Company Ltd. Vs. Smt. Neelam and Ors. 2009 ACJ 992, on which case the Appellant has also relied. In this case, the Insurance Company had challenged the award of the Tribunal and one of the grounds taken was that the family of the deceased was getting family pension and the widow had been given employment on compassionate grounds by the employer of the deceased. This Court rejected the said contentions of the Insurance Company and to support its decision, it referred to the decision rendered by the Supreme Court in Helen C. Rebello (supra) and to the following pertinent observations made by a Division Bench of the Karnataka High Court in the case of Smt. Lalitha and Anr. Versus Dashanbhat Haribansh Bhat and Others, AIR 1998 Kant 344:

9. In the case of National Insurance Company Ltd. Vs. Smt. Manju Bala 2009 ACJ 1665, this Court again referred to the decision of Helen C. Rebello (supra) and rejected the contention of the Insurance Company that since the widow of the deceased had been given employment on compassionate grounds, her resultant income was liable to be deducted from the compensation granted to the claimants under the head “loss of income”. The following pertinent observations were made: